The finality of judgments and the consideration of sentences during appeal and revision under the Criminal Procedure Code.

Staples, A J C—This is an application made under Section 561-A, Criminal P.C. From the grounds which are given in the application it would appear that it is an attempt to obtain a second hearing of the applicant's revision application which was heard by me and decided by my order of 22nd July 1930. Such a reconsideration or review of an order is certainly not permissible under Section 561-A or any other section of the Criminal Procedure Code. It was however urged that, at any rate, under the provisions of Section 561-A the question of sentence could be reconsidered, and a prayer was made that the sentence of imprisonment be set aside and that the applicant might be dealt with under the provisions of Section 562 of the Code. In support of this a reference was made to a case published in Mathra Das v. Emperor,1927 AIR(Lah) 139, in which Broadway, J. has held that Section 369 of the Code does not prevent a Court from reconsidering the question of sentence after it has signed the judgment. With all due respect I am unable to agree with this view and it seems to me that it would be very dangerous principle to allow Courts to reconsider sentences when once they have passed judgment. There are provisions in the Code for appeal and for revision, and in both appeal and revision the question of sentence must always be one of the factors considered. When, then, the appellate Court or the Court exercising revisional powers has considered the case in all its aspects including that of the sentence and has passed a judgment or order, that judgment or order must, I think be final under Section 369 of the Code, and the provisions of Section 561-A cannot be invoked to allow the Court to reconsider the question of sentence.

2. The other ground urged was that Section 30, Evidence Act, had been improperly invoked by me in my order, and a reference was made to Emperor v. Mahadeo Prasad, 1923 AIR(All) 322, Empress v. Ashootosh Chuckerbutty, 1879 4 ILR(Cal) 483 and Empress v. Lakshman Bala,1882 6 ILR(Bom) 124.

3. In this connexion two points are raised: one that the confession of the accused was not proved, and the other that this question had not been raised at the hearing and therefore the Counsel for the applicant had no opportunity of meeting it. As regards the first point, it is true the confession was made when the accused Gopala was examined by the Magistrate and not previously. The confession was not therefore a confession within the meaning of Section 164, Criminal P.C. According to the view taken in Empress v. Lakshman Bala,1882 6 ILR(Bom) 124 such a statement or admission made during the course of examination is not a confession proved within the meaning of Section 30. With all due respect, however I do not agree with that view, and I think that it has been the usual practice in these provinces to consider a confessional statement made by an accused person as a confession proved within the meaning of Section 30, whether made before the trial or during the trial provided that it is recorded according to law. I would prefer to follow the view taken in Queen Empress v. Chinna Pavuchi,1899 22 ILR(Mad) 151. In Empress v. Lakshman Bala,1882 6 ILR(Bom) 124, the confession was held to be inadmissible, but there the Sessions Judge had been guilty of some irregularity in the examination of the accused, and the case therefore is not really in point. I am of opinion that where the accused has been examined under Section 342, Criminal P.C., in Court in the presence of the other accused and his examination has been duly recorded according to the provisions of Section 364 of the Code, any admission made by him during the course of that examination, which inculpates himself as well as the other accused, is a confession proved within the meaning of Section 30, Evidence Act. According to this view then the admission made by Gopala when examined by the Magistrate is a confession proved within the meaning of Section 30, Evidence Act.

4. As to the second