LAWS(MAD)-2000-9-71

DHANDAPANI Vs. STATE

Decided On September 20, 2000
DHANDAPANI Appellant
V/S
STATE Respondents

JUDGEMENT

(1.) THIS petition in Crl.M.P.SR.No.26882 of 2000 in Crl.R.C.No.832 of 1998 is filed under Section 482 of the Code of Criminal Procedure by the petitioner in Crl. R.C. No.832 of 1998 after its disposal with a prayer to recall the order dated 9.8.2000 passed by this Court in the above revision. The Registry returned the petition with an endorsement that the petition is not maintainable. Thereafter, the counsel re -presented the petition by stating that under Section 401(2) of the Code of Criminal Procedure no order under the Section shall be made to the prejudice of the accused or other person unless he had an opportunity of being heard either personally or by pleader in his own defence as otherwise principles of natural justice is denied as enshrined in maxim 'audi alteram partem' There was a further endorsement that though, there is a bar under Section 362 of the Code of Criminal Procedure or the Court to revoke, alter or review the judgment, the High Court has inherent power under Section 482 Cr.P.C. and the same can be invoked to secure the ends of justice by recalling the order earlier passed on 9.8.2000 in the main revision and that Section 362 Cr.P.C. is not attracted in view of the judgment of Rajasthan High Court in Habu v. State ( : AIR 1987 Raj 83) and he has further requested the Registry to post the matter before the Court if the office is not satisfied with the explanation. The Registry thereafter, has posted the petition before this Court for deciding the question of its maintainability.

(2.) BEFORE 1 give my finding on the petition as to the maintainability, few facts have to be mentioned. Crl.R.C.No.831 of 1998 was filed by the petitioner/accused against the conviction and sentence imposed upon him under Sections 279 and 338 of the Indian Penal Code. The revision was admitted and notice was ordered to the other side. This Court did not call for the records from the trial Court at the time of admission of the revision. The matter was posed for hearing on 9.8.2000 and when it was taken up. there was no representation. Thereafter, the matter was heard on merits and this Court perused the judgment of the Courts below as well as the grounds and thereafter, passed the order dismissing the revision.

(3.) LEARNED counsel further submits that Section 401 Cr.P.C. contemplates that the Court while exercising the powers of revision can also exercise all the powers of the appellate Court including the powers conferred in a Court of Appeal under Sections 386. 389. 390 and 391 Cr.P.C. or on a Court of Session under Section 307 Cr.P.C. Relying upon the above provision counsel submits that the appellate Court under Section 386 Cr.P.C. has to dispose of the appeal only after perusing the records and hearing the appellant or his pleader and also the learned Public Prosecutor, if he appears. It is his submission that since the revisional Court can exercise all the powers of the appellate Court and Section 386 Cr.P.C. contemplates that the appeal can be disposed of only after the perusal of the records, the revisional Court while exercising the powers of revision cannot dispose of a revision without the perusal of the records 1 am afraid, the said contention is fallacious. A combined reading of Sections 386 and 401 Cr.P.C. only shows that the High Court while exercising the powers of revision can also exercise the powers of an appellate Court and it does not say that the Court has to consider the revision only after the perusal of the records and also hearing the learned Public Prosecutor It is his contention that the revisional Court can dispose of a revision only on hearing the party or his pleader in person as according to him. Section 401 Cr.P.C. r/w. Section 386 Cr.P.C. contemplates on such a course. If such an interpretation has to be given as contended by the counsel, then, violence will be caused to Section 403 Cr.P.C. Sub -section (1) of Section 401 Cr.P.C. is an enabling provision enabling the High Court to exercise the powers of an appellate Court while dealing with the revision, but. it does not confer a power which is prohibited by the Code. If the argument of the counsel is accepted, then, it will not only cause violence to sub -section (3) of Section 401 Cr.P.C. which contemplates that the High Court shall not convert a finding of acquittal into one of conviction which power can be exercised by the High Court while dealing with an appeal against acquittal, but also cause violence to Section 403 Cr.P.C. The Sections in the Code must be read harmoniously and the interpretation of any Section in the Code must be consistent with any other provision in the Code The above argument has to be considered in the background of Section 403 Cr.P.C. As stated if the contention of the counsel is accepted. there cannot be a harmonious construction of Sections 386. 401 and 403 Cr.P.C. The contention of the counsel relying on. Sections 401 and 386 Cr.P.C. therefore, has to be rejected and it is accordingly, rejected.