IN RE: NARAYAN CHANDRA DEY Vs. XYZ

JUDGEMENT

(1.) On 29/8/88 a Division Bench of this Court had discharged the Rule in C. P. No. 2132 of 1983, issued at 'the instance of the present applicant Narayan Chandra Dey as it found after hearing the learned advocate for the opposite party and on examination of the record that no jurisdictional error or illegality or irregularity was committed by the court below while making the impugned order. The order discharging the Rule is how sought to be recalled by the applicant en the ground that it was made without hearing his learned advocate on record who was not regularly available in the High Court.

(2.) After hearing the learned advocate for the applicant, we are firmly of the opinion and accordingly find that the order dated 29/8/88 cannot be recalled being barred by the provisions of Sec. 362, Code of Criminal Procedure, 1973. The learned advocate for the applicant, however, has cited the decision of the Supreme Court in Makkapati Nagaswara Shastri Vs. S. S. Satyanarayan, AIR 1981 SC 1156 , in which the Supreme Court had set aside an order of High Court accepting a reference made by an Additional Sessions Judge under Sec. 435, Code of Criminal Procedure, 1898, without hearing the respondent or his counsel. It appears that after the reference was accepted by the High Court, a prayer was made for review of the order but it was rejected on the ground that in a revision case, the respondent was not entitled to be heard as of right. In such circumstances' the Supreme Court intervened and held that the view taken by the High Court was manifeslty contrary to the audi alteram partem rule of natural justice which was applicable to the proceedings before the High Court and the order accepting the reference was accordingly set aside. This authority is hardly of any assistance to the applicant in the instant case. The report does not disclose that the reference accepted by the High Court on consideration of merits of the case. On the other hand, it shows that no notice of the date of hearing was issued either to the respondent or to his counsel of which note was taken by the learned Judges of the Supreme Court. In such circumstances the Supreme Court took the view that the procedure followed by the High Court was contrary to the rules of natural justice and so it was held that the order made by the High Court did not deserve to be maintained. Thus it is found that while in Makkapati's case (supra) the respondent was not even aware of the revisional application against him, in the case before us, the applicant was very much aware of the case, the rule wherein was issued at his instance. Further, in Makkapati's case (supra), as already pointed out, there is nothing to show that the High Court accepted the reference on examination of the record while in the case before us, the learned Judges discharged the Rule after fully considering the merits of the case. Therefore, the two cases are clearly distinguishable and the aforesaid decision of the Supreme Court cannot come to the aid of the applicant.

(3.) In this connection reference may be made to the decision of the Supreme Court in State of Orissa Vs. Ram Chandra Agarwala, AIR 1979 SC 87 which is good law to this date. In that case, it was held by Their Lordships, after considering several previous decisions on the point, that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained as there is no such provision in the Code of Criminal Procedure. Their Lordships also pointed out that Sec. 369, Code of Criminal Procedure, 1898, which substantially corresponds to Sec. 362, Code of Criminal Procedure, 1973, do not restrict the prohibition to the trial court alone but it is general in its application and prohibits all Courts from altering or reviewing its judgment after it has been signed. Therefore, it can be said without any fear of error that this is an authority which completely bars the entertainment of the application under consideration.