P KANNAN KUNHIMANGALAM Vs. FOOD INSPECTOR CANNANORE MUNICIPALITY

JUDGEMENT

(1.) THESE two petitions under section 561a of the Criminal Procedure Code relate to the inherent power of the High Court to review or revise its own judgment. Cr. M. P. 590 of 1963 is for reopening Criminal Appeal 204 of 1963 disposed of by this court, on the ground that the petitioner's advocate was not heard jn the matter. Cr. M. P. 591 of 1963 is to review the order passed by this court in Cr. M. P. 122 of 1963 condoning the delay in filing the application for leave to appeal under section 417 (3), on the ground that the Supreme Court has held recently that section 5 of the Limitation Act would not apply to applications under Section 417 cr. P. C.

(2.) SECTION 369 Cr, P. C. , enacts that save as otherwise provided by this code or by any other law for the time being in force or, in the case of High Court by the letters Patent or other instrument constituting such High Court no court, when it has signed its judgment, shall alter or review the same except to correct a clerical error. But Section 369 appears in Chapter XXVI of the Criminal Procedure Code, which relates only to judgments pronounced by the trial court including the High court in the exercise of its original criminal juris diction and so we have to go to section 430 Cr. P. C. , which relates to the finality of judgments pronounced by the high Court in the exercise of its appellate jurisdiction. It enacts that judgments and orders passed by an appellate court upon appeal shall be final except in the cases provided for in Section 417 and Chapter XXXII. The Supreme Court in Chopra v. State of Bombay, (S) AIR 1955 SC 633 at p. 639 has observed :

(3.) THE right of review is a creature of sta tute and in the absence of any provision in the Code of Criminal Procedure judgments cannot be reviewed by the High court. It was suggested by the learned counsel that even though there is no provision for review in the Code of Criminal Procediire it is open to this Court on a proper application being made under Section 56ia to set it aside. Learned counsel would argue that if this court had no power to excuse the delay and admit the appeal there is an inherent lack of jurisdiction and the judgment pronounced is null and void and could be set aside under Section 561a for the purpose of securing the ends of justice. If a court has no jurisdiction to pass the order complained against, this court would have the jurisdiction to declare the judgment a nullity but there is difference between inherent want of jurisdiction to entertain the matter and an irregular exercise of it. If there is no lack of jurisdiction, but there is an illegal or irregular exercise of jurisdiction, the course open to the parties is only by way of appeal or revision. The law is summed up in Corpus Juris secundum (Vol. 49, section 401) in the following terms: