9911796707
TMI Blog1978 (10) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... he cases were tried by the Additional District Magistrate (Judicial), Cuttack. The District Magistrate found the firms and persons, in management of the business, guilty of the offences with which they were charged and inflicted a consolidated fine of ₹ 2,000/-with the direction that, they would suffer simple imprisonment for three months in default of payment of fine. Against their conviction and sentence, the accused preferred an appeal to the Sessions Judge. The Sessions Judge, while dismissing the appeals, found that the law required imposition of a minimum sentence of fine of ₹ 1,000/-for each offence and as the sentence passed by the trial court was not in accordance with the law, he referred the matter to the High Court for passing of appropriate sentence. The accused preferred Revision Petitions against the order of the Sessions Judge. The Reference made by the Sessions Judge as well as the revision Petitions by the High Court. The High Court, while dismissing the Revision Petitions preferred by the accused, accepted the Reference by the Sessions Judge and enhanced the sentence so far as the firms are concerned, to a sum of ₹ 3,900/-at the rate of rupees o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the revisions would establish that the petitioners merely were given notice to show cause why the sentence of fine should not be regularised by way of enhancement of fine and that the notices ruled out enhancement by way of imprisonment since in this setting the notices were specifically in respect of fine and therefore imposition of sentence of imprisonment was without jurisdiction. We do not find any basis for the conclusion arrived at by the High Court. The notice, under Section 439 (2) of the Criminal Procedure Code requires that no order, under Section 439, shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence, and sub-section (6) states that notwithstanding anything contained in this section, any convicted person, to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction. The order of the learned Judge by whom the reference was received and the notice issued by the High Court clearly show that, the respondents were asked to show cause why their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no implied power to alter or review their own judgments whether under Section 369 or under Section 439 or otherwise. It was accordingly proposed in 1921 that the words other than a High Court should be omitted to make it clear that Section 369 conferred no such power on the High Courts, as it was noticed that one or two other sections of the Code besides 395 and 484 and clause 26 of the Letters Patent of the High Courts empowered the High Courts to revise their judgments. Hence the Section was redrafted. Section 369 of the Code of Criminal Procedure 1898 reads as follows :- 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 constitute such High Court, no court, when it has signed its judgment shall alter or review the same, except to correct a clerical error . Under the Code of Criminal Procedure (Act 2 of 1974) the new Section 362 provides- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered . The first part of Section 424 provides that the rules, contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction, shall apply, so far as may be practicable, to the judgment of any Appellate Court other than a High Court. Chapter XXVI relates to the judgment. Section 366 is the first section in the Chapter. It prescribes the mode of delivering judgment, i.e. it shall be delivered in the open court and in the language of the court. Sub-Section (2) provides that the accused shall be required to attend, to hear judgment delivered. Section 367 prescribes the language and contents of the judgment and provides that the judgment may be in the alternative. When read with Section 424, it is seen that Sections 366, 367 and 368, which relate to the judgment of a criminal court of original jurisdiction, are made applicable, as far as may be to the judgment of the appellate court other than the High Court. The effect of Section 424 Crl. P.C. would be that the judgment of the appellate court should, as far as applicable, be in acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be deemed to limit or effect the inherent power of the High Court to make such orders, as may be necessary, to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice . The inherent power of the High Court is restricted to making such orders, as may be necessary, to give effect to any order, under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The scope of the section has been explained. In the two decisions of the Privy Council, which have been uniformly followed by this Court. In Emperor vs. Khwaja Nazir Ahmad the Privy Council, repelling the view that Section 561A of Criminal Procedure Code gave increased powers to the court which it did not possess before that section was enacted, observed, that it was not so and proceeded to state The section gives no new powers, it only provides that those powers which the Court already inherently possess shall be preserved, and is inserted as. Their Lordships think lest it should be considered, that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise directed to hear the judgment delivered. The provisions of Section 366(2) require the court to secure the personal attendance of the accused at the time of delivery of the judgment, except where his personal attendance during the trial has been dispensed with. The effect of Section 424 is generally that, the appellate court should comply with the requirements prescribed under Sections 366 and 367. Section 430 deals with finality of orders on appeal, that is, the judgment passed by an appellate court shall be final unless otherwise provided for, but the finality of the appeal is subject to the provisions of section 417 of the Criminal Procedure Code which enable the State to prefer an appeal against an order of the trial court or by an appellate court. Similarly a judgment by an appellate court is final subject to the Chapter which provides for reference and revision. Section 424 deals with the general requirements of judgments and Section 430 with the finality of judgment on appeal unless otherwise provided for. These two sections, it may be noted, do not deal with restriction against altering or reviewing the judgment except for correcting a clerical error. A reading of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Chopra vs. State of Bombay. The question that arose for decision in the case was whether a revision preferred by the State of Bombay to the High Court praying for enhancement of sentence, passed on the accused, is maintainable after the appeal preferred by the accused to the High Court of Bombay, was summarily dismissed. This court held that the summary dismissal of the appeal, preferred by the appellant, did not preclude him, from taking advantage of the provision of Section 439(6) of the Code of Criminal Procedure, and showing cause against his conviction when he was subsequently called upon to show cause why the sentence imposed on him should not be enhanced. Two separate judgments were delivered by the three-Judge Bench. Justice Bhagwati along with Imam, J. spoke for the court while S.R. Das, J. delivered a separate judgment. Justice Das, while repelling the contention that the power under Section 439(6) is conditioned or controlled by the provisions relating to finality of judgment embodied under Section 369 and 430 at page 108, observed: There is indication in the Code itself that the purpose of Section 369 is not to prescribe a general rule of finality of all judgments of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lower Court should be reduced, confirmed or enhanced. Once therefore the judgment of the High Court replaces that of the lower Court there is no question which can ever arise of the exercise by the High Court of its revisional powers under section 469 ( 1 ) of the Criminal Procedure Code. Again at p. 162 the learned Judge reiterated the principle and observed As we have observed that principle comes into operation when once a judgment of the High Court has replaced that of the lower Court and in those cases the High Court would not be competent to review or revise its own judgment. In referring to the import of section 369 on the powers of the High Court under section 439(6), Bhagwati J. held that section 369 in terms provides, save as otherwise provided in this Code and section 439(6) would be an otherwise provision which is saved by this non- obstante clause appearing in section 369. It is significant to note that both these amendments the one is section 369 and the other is section 439, were enacted by section 119 of Act XVIII of 1923 and the very purpose of these simultaneous amendment would appear to be to effectuate the right given to the accused to show cause agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns Judge for re-hearing of all appeal. The learned Judge was of the view that the appellate court had no power to review or restore an appeal which has been disposed of. The Supreme Court agreed with the view that the appellate court had no power to review or restore an appeal. This court, expressing its opinion that the Sessions Court had no power to review or restore an appeal observed that a judgment. which does not comply with the requirements of section 369 of the Code, may be liable to be set aside by a superior court but will not give the appellate court any power to. set it aside himself and rehear the appeal observing that section 369 read with section 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. Reliance was placed on a decision of this Court in Superintendent and Remembrance of Legal Affairs W.B. v. Mohan Singh and others(2) by Mr. Patel, learned counsel for the respondent wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
