( 1 ) THE applicants were tried for the offence of murder by the Sessions Judge, Naini Tal, and were convicted under Section 302 I. P. C. by an order dated 10-4-60. Sadhu Singh was sentenced to death while the remaining applicants were sentenced to imprisonment for life. Their appeal was dismissed by the High Court on 12-7-60 which confirmed the death sentence passed on Sadhu singh, The applicants then applied for leave to appeal to the Supreme Court but the same was dismissed by the High Court on 11-8-60. Thereafter they moved the Supreme Court by means of a petition for special leave to appeal but it was also rejected by an order dated 13-10-60.

( 2 ) THE applicants have now applied to this Court tinder Section 561-A Cr. P. C. for review of the appellate order of the High Court dated 12-7-60 on the allegation that the site plan prepared by the investigating officer and relied upon at the trial was a forged document and that perjured evidence had been produced by the prosecution in support of its case. This Court is, therefore, asked to summon fresh evidence and to re-examine the case in, the light of new facts brought to its notice.

( 3 ) A preliminary objection has been raised by the learned Assistant Government Advocate that the applications for review filed by the applicants are not maintainable. It is contended that the dismissal by the Supreme Court of their objection for special leave to appeal amounts to a final order and the High Court is functus officio and has no jurisdiction to question or disturb the said order in any way.

( 4 ) IN reply the learned counsel for the applicants contended that the order of the Supreme Court refusing to grant special leave to appeal was not a final order as the judgment of the High Court could not be said to have merged in the order passed by the Supreme Court. He argued that the high Courts power of review under Section 561-A Cr. P. C, was not affected by the order of the supreme Court dismissing petition for special leave to appeal.

( 5 ) THE first point that falls to he dealt with is whether the rejection by the Supreme Court of the applicants petition for special leave to appeal amounts to a final order and, as such, operates as a bar to the maintainability of the review applications filed by the convicted persons,

( 6 ) UNDER Article 130 of the Constitution the Supreme Court has a discretion to grant special leave to appeal from any judgment, sentence or order passed by the High Court. In exercise of its rule-making power under Article 145 the Supreme Court has framed rules which are called the supreme Court Rules, 1950. Rule 3 of Order XXI of the Supreme Court Rules says that a petition for special leave to appeal in criminal proceedings shall state succinctly and clearly all such facts as may be necessary to state in order to enable the court to determine whether special leave to appeal ought to be granted. Rule 4 provides that the petition shall be accompanied by a certified copy of the judgment or order sought to be appealed from and the affidavit prescribed therefore. Rule 9 states that on the granting of the petition the petition for special leave to appeal shall be treated as a petition of appeal and shall be registered and numbered as such.

( 7 ) THE Supreme Court Rules indicate that the granting of a petition for special leave to appeal would amount to the admission of the appeal itself. It would follow that the dismissal of such a petition, would likewise be regarded as the dismissal of the appeal. In other words, the order of dismissal would have the effect of affirming the judgment or order passed by the High Court. It is thus evident that so long as that order (of dismissal) stands the High Court would be functus officio and it could not review or alter its judgment in purported exercise Of its inherent power.

( 8 ) THE matter may be looked at from another point of view. Supposing that the High Court possessed an inherent power of review, then it may cithe