RAJAN KUMARAN Vs. VIJAYAN ACHUTHAN

JUDGEMENT

(1.) This criminal miscellaneous petition is in the nature of a review of the order passed by this court on 10th of January, 1969 in Cr. M. P. 778/68. That was a petition filed by the accused in C. C. 377/68 on the file of the Sub Magistrate, Parur for annulling the proceedings in C. C. 377 on the ground that the complaint did not disclose an offence. The petition was filed under S.561A of the Code. The complaint before the Sub Magistrate was filed by one Rajan alleging that the accused with three others trespassed into his jewellery Mart known by the name ''Vijaya Jewellery Mart" and removed therefrom certain gold ornaments. It was further alleged that when Rajan went to the shop the next day he was scared away by threats of violence. The accused in the meantime filed O. S. 54/68 in the Munsiff Court, Parur for a perpetual injunction to restrain Rajan from interfering with his possession of the shop and the business. In the civil suit he alleged that the business was his, and that Rajan was only his paid employee. That suit was decreed granting perpetual injunction as prayed for. The accused's possession of the jewellery mart also was declared. In the light of that finding there was no scope for a criminal complaint of trespass. Moreover, even according to the complainant, himself and the accused had constituted themselves into a partnership and in that view also he had no cause for complaint because one partner cannot commit trespass or theft against the other partners or in respect of the partnership property. On these grounds the Cr. M. P. 778/68 preferred before this court under S.561A was allowed and the criminal complaint was quashed. The present review petition is by the said Rajan who was the complainant in the criminal case. According to him, his lawyer was not heard and, therefore, in the interests of justice the matter should be reheard. The petition is opposed on the ground that under the Criminal Procedure Code no review lies against the judgment or order passed by the court. The learned counsel's contention is that as soon as the judgment is pronounced and signed by the Judge, the High Court becomes "functus officio" and it is not afterwards open to the High Court to alter or review the judgment. In support of this petition, the learned counsel relied on a Single Bench decision of the Madras High Court in Rangaswami v. Narayanan ( AIR 1966 Mad. 163 ) wherein the learned Judge observed that: --

(2.) In the present case it is contended on behalf of the petitioner that on the former occasion when the petition under S.561A was taken up for consideration his advocate was absent and he was thus prevented from placing his view points before court. His contention is that a judgment delivered without giving reasonable opportunity to the respondent or his pleader to be heard, must be held to be one passed without jurisdiction and the High Court has power to make an order for its being heard. On the same line is the reasoning of the Travancore - Cochin High Court in State v. Kunjan Pillai (AIR 1952 TC 21 FB) The learned Judges held in that case:-