1. Conviction under IPC — Appeal dismissed on merits in absence of appellants — Application for restoration allowed by the same judge — Subsequent order declaring restoration ultra vires. (Para 1 , 2 , 3 , 4 )
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1962 Supreme(SC) 30
SUPREME COURT OF INDIA
25th January 1962
S.K. DAS, K.SUBBA RAO AND RAGHUBAR DAYAL, JJ.
Sankatha Singh and others, Appellants
Versus
State of U.P., Respondent.
Criminal Appeal No. 145 of 1959.
Advocates appeared
Mr. S. P. Sinha, Senior Advocate (Mr. P. C. Agarwala, Advocate, with him), for Appellants; M/s. G. C. Mathur and C.P. Lal, Advocates, for Respondent.
Advocates:
C.P.LAL, G.C.MATHUR, P.C.AGRAWAL, S.P.SINHA
C.P.LAL, G.C.MATHUR, P.C.AGRAWAL, S.P.SINHA
An appellate court cannot review or alter its own signed judgment in a criminal appeal, except for clerical errors, per Sections 369 and 424 of the Code of Criminal Procedure. Inherent powers cannot be exercised to override such specific statutory prohibitions.
Headnote:(A) Code of Criminal Procedure - Sections 367, 369, 422, 423 and 424 - Dismissal of criminal appeal - Restoration and re-hearing - Appellate Court cannot alter or review its own judgment once signed, except for the purpose of correcting a clerical error - Omission to write a detailed judgment in compliance with Section 367 may make the order liable to be set aside by a superior court, but does not empower the court that passed the order to set it aside itself and re-hear the appeal (Paras 7, 10).
(B) Inherent Powers - Cannot be exercised to do what the Code specifically prohibits - Statutory prohibition against reviewing or altering a judgment under Section 369 read with Section 424 overrides the exercise of inherent powers (Para 9).
(C) Notice and Hearing - Section 422 requires notice of the date of hearing to be given to either the appellant or the pleader, and not necessarily both - Under Section 423, if neither the appellant nor the pleader appears, the appellate court can proceed with the disposal of the appeal on merits (Para 8).
Facts of the case:
Appellants were convicted of offences under the Penal Code and filed an appeal. The appellate court dismissed the appeal after perusing the record, as neither the appellants nor their counsel appeared. Subsequently, the same court allowed an application for restoration and ordered a re-hearing, reasoning that no notice had been issued to the appellants and the original judgment was inadequate. A successor judge later held that the appellate court had no power to review or restore a disposed-of appeal, rendering the restoration order ultra vires. This view was upheld by the High Court.
Findings of Court:
The appellate court was in error in restoring the appeal. While the original judgment may have lacked detail, it was a decision on merits and not a dismissal for default. The court had no jurisdiction to review its own signed judgment.
Issues: Whether an appellate court has the jurisdiction to set aside its own order dismissing an appeal and order a re-hearing of the same.
Ratio Decidendi: Under Section 369 read with Section 424 of the Code of Criminal Procedure, an appellate court is specifically prohibited from altering or reviewing its judgment once signed, except for correcting clerical errors. Inherent powers cannot be exercised to override a specific statutory prohibition.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether an appellate court can review or restore a disposed criminal appeal or exercise inherent powers to order a re-hearing despite statutory prohibitions. (Para 4 , 9 , 10 )
3. Criminal appeals cannot be dismissed for default; if decided on merits, the court cannot review the judgment regardless of whether the reasoning was detailed. (Para 7 , 8 )
4. Section 369 read with Section 424 of the Code of Criminal Procedure prohibits an appellate court from altering or reviewing a signed judgment except for clerical errors. (Para 7 , 9 , 10 )
5. Appeal dismissed. (Para 11 )
6. Can a criminal appeal be dismissed for default of the appellant or their counsel?
No, a criminal appeal cannot be dismissed for default. The court must either adjourn the hearing to enable appearance or consider the appeal on its merits and pass a final order. (Para 7 )
7. Does an appellate court have the power to review or alter its own signed judgment in a criminal appeal?
No, Section 369 read with Section 424 of the Code of Criminal Procedure specifically prohibits an appellate court from altering or reviewing a judgment once signed, except for the purpose of correcting clerical errors. (Para 7 , 9 , 10 )
8. Can inherent powers of a court be used to order a re-hearing of a criminal appeal if the Code prohibits review?
No, inherent powers cannot be exercised to perform an act that the Code of Criminal Procedure specifically prohibits the court from doing. (Para 9 )
9. Is notice to both the appellant and their counsel mandatory under Section 422 of the Code of Criminal Procedure?
No, notice of the hearing of the appeal must be given to either the appellant or their pleader; it is not required to be given to both. (Para 8 )
Judgment
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, Gyanpur, 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.
2. The appellants were convicted by the Magistrate, Ist Class. Gyanpur, of offence under Ss. 452 and 323 read with S.34, 1. P.C. Kharpattu, one of the appellants, was also convicted of an offence under S. 324, 1. 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 appellant s 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."
3. 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 getting injuries. This application was allowed, on July 2, 1 957, by the learned Sessions Judge, Sri Tej Pal Singh, who had dismissed the appeal. His reasons for allowing the application appear, from his order, 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 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.
4. Sri. Tripathi, who succeed Sri. Tej Pal Singh as Sessions Judge, and before whom the appeal was put up for re-hearing, was of the opinion that the applleal 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.
5. 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.
6. The sole point for determination in this appeal whether Sri Tej Pal Singh could set aside his first order dated November 30,1956, dismissing the appeal, when neither the appellants nor the 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.
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. 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
