SANKATHA SINGH versus STATE OF U.P.

J.-Sankatha Singh and others appeal against the order of the All aha had High Court diFmissing their application for revisrnn of the order of the Sessions Judge, Gyanp ur, holding the ordl'r of his predeceBSor for the rehearing of an appeal which had bPen dismissed earlier to hi" ultra 1Jires and without jurisdiction and directing the Magi8trate to take immediate steps to l'Xecute thi> order passed by it, according to law.

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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 offenco under s. 324, ·J.P.C. They appealed against thrir Ponviction. The appPal was fixed for hearing on XoYemher 30, 1956. On that <lat(', noilht'r t:1e appellants nor their counsel appPared in Court and the learned Sessions Judge dismissed thl' appeal. The rel"'·ant portion of his order is :

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"The appellants have beon absent, and their learned counsel has also not appeared to :uguc the appeal on behalf of the appel- J.mts. 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."

p. 818

On December J 7, 1956, an application was presPntcd hy the appellsnts praying that the P.ase he reston·d to its original numbor so that justico he doirn to t h«m. In expl11.ining their absence from Court on thn <lato of hearing, it was said that they reRchcd the Court somewhat lntc due to the Ekka, by which they were travellin~" over· turning arcidontally on the way and, a result, lht>ir getting injurit•s. This application was allowed, on July 2, I !l5i, hy the lcarne<l Sessions Judge, Sri Tej Pal Singh, who had dismissed the appeal. His reasons for allowing the application appear, from his orde1, to be that the apnlioation' 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 isAued to the appellants as required bys. 422 of the Code, that s. 367 of the Code la.id 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 th~t it was necessary that the appeal be re-heard in the ends of justice.

pp. 818–819

Sri Tripa.thi, 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.

p. 819

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 Tripatbi and accordingly, dismissed the revision application.

p. 819

The sole point for determination in this appeal is whether Sri Tej Pal Singh could set aside his £rot order dat.Ad No>ember 30, 1956, dismissing the appeal, when neither t.he 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.

p. 819

A criminal appeal cannot be dismiBBed 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 p&SS the final order. Sri Tej Pal Singh was a.ware 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 ha.d not expreBSed his reasons for coming to that opinion does not mean that he ha.d 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 eomplianci> with ~he provisions of s. 367 of the Code and may be liable to be set as.ide by a superior Court, but will not give him any power to set it aside himself, and re·hear the appeal. Section 369, rea.d withs. 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.

p. 820

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 hea.ring the appellant or his pleader and the Public Pro- Becutor. He omitted to notice tho words 'if he appears' aftP-r tho expros.~ion 'and hearing the appellant or his pleader'. If none of these appears at the hearing, the appellate Court can proceed with the disposal of the appeal on merits. Of <'ourse, a notice to t,he appellant or his counsel of the date of hearing is an rssential precedent for the hearing of the appeal, in view of s. 422 of the Corle, Sri Tej Pal Singh states, in his order dated

p. 820

"It will also appear that the conditions of s.422, Cr. P. C. were also not fulfilled, as

p. 821

no notice was ewir issu·ed to the appellant." Ho 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 gi've 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.

p. 821

It has been urged for the appellants that Sri Tej Pal Singh could order the re-hearing of the appeal in the exeroise 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 a.re of opinion that he could not pass the order of the re-hearing of the appeal 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 Tripa.thi was competent to consider when the other party raised the objection whether the appeal was validly up for re-hearing before hiru. He considered the question and decided it rightly.

p. 821

It i~ also urged for the appellants that Sri Tej Pal Singh, had the jurisdiction to pass 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 b.e said to have been absolutely without jurisdict10n. We do not agree. He certainly had jurisdiction to dispose of the applimtion presented to him, but when s. :l69, of the Code <ldinitcly pi ohiLited the Court's reviewiug or alteriug it8 judgment, he had no jurisdiction to con8ider the point raised and to set aside the order di8rnissi11g the appeal and order its re-hearing.

pp. 821–822

We therefore see no force in this appeal and accordingly dismi8s it.

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A ppe.al d ismis;;t d. THE MANAGE:IJE~T OF U.B. DUTT & CO.

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v.

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WORKMEN OF U.B. DCTT & CO. (P. B. A. IC and

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K. N. JJ.) -If power-If -If and of and pc~ding of the of The

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of

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of of The Ordcn,

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