KALIPADA JANA Vs. SARBESWAR PANDA

JUDGEMENT

(1.) This is an application by Sarbeswar Panda who was opposite party No, 1 in Criminal Revision Case No. 322 of 1958 and is with notice to the learned Advocate for the petitioners in that Revision case. The application has been made under very unusual circumstances. On 11th of March, 1958 I issued a Rule in favour of the petitioners in Cr. Revn. Case No. 322 of 1958 who were members of the second party in a proceeding under Section 145 of the Code of Criminal Procedure. This Rule was made returnable in two weeks and it came up for hearing on the daily list on 25th of March, 1958. On that day Mr. B. K. Panda, Advocate appeared before me and prayed for adjournment of the case, stating that he had instruction to appear in the case on behalf of the opposite parties but had not till then received any Vakalatnama. I adjourned the case for the day and did not take it up until 27th of March, 1958 on which day nobody appeared on behalf of the opposite parties. The case was thereafter heard in full and I ordered the case to be sent back for rehearing.

(2.) In the present petition, which has been sworn to by one Bejoy Krishna Panda, brother of the petitioner, it is stated that the notice of the Rule in Criminal Revision No. 322 of 1958 was served on 27th of March, 1958 by the processserver by hanging in the absence of the petitioner. It is also alleged that the return of service as made by the process-server to the effect that he served the same on 21st March, 1958 is false. It may be stated here that the present petition has been made by Sarbeswar Panda who was one of the 6 opposite parties in Revision Case No. 322 of 1958. It is not however, stated that there was no service on the five other opposite parties. In paragraphs 6 and 7 of the present petition it is stated that the petitioner was at the time of the alleged service not at Mirzapur in the District of Midnapore but he was at Kamalpur, Police Station Sagar in Sundarbans where he was suffering from fever. It is further averred that his brother Bejoy Krishna Panda sent one Jhareswar Das to the petitioner at Kamalpur informing about the Rule that was issued. The petitioner states that he got the information from Jhareswar Das on the evening of 24th March and instructed the said Jhareswar Das to inform his brother Bejoy Krishna Panda to take steps in the matter. Thereafter Bejoy Krishna Panda started for Calcutta on the night of 24th March and reached Calcutta on the morning of 25th March 1958. It is significant to note that although the petitioner instructed his brother . Bejoy Krishna Panda to go to Calcutta, he did not send any Vakalatnama to enable the learned Advocate to enter appearance on his behalf. I do not understand why it was impossible for the petitioner to send the Vakalatnama through Jhareswar to his brother Bejoy Krishna Panda for making it over to the learned Advocate. Mr. Panda on 25th of March, 1958 was stated to have been instructed by Bejoy to pray for adjournment of the case for one week. It appears that on 27th of March, the Vakalatnama did not reach the learned Advocate. It is not necessary to go into the question whether or not there was a proper service upon the petitioner in view of the admitted fact that the petitioner on 24th of March, 1958 was fully apprised of a Rule having been issued by this Court. Why the other five petitioners or any of them did not think it fit to enter appearance is not mentioned in the present petition. It will be seen that when I disposed of the case I took no notice of the fact that the opposite parties had not appeared but went into the matter in full on an examination of the records.

(3.) Apart from the facts stated above, the main question is, Has the Court any jurisdiction to set aside or review its own judgment or order which has already been signed? In this connection reference may be made to Section 440 of the Code of Criminal Procedure which gives no party any right to be heard either personally or by pleader before any Court when exercising its power of Revision. Reference may also be made to Sections 369 and 561-A of the Code. Section 369 is in the following terms :