RAMBALLABH JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Section 561A, Code of Criminal Procedure, for re-hearing of Criminal Appeal No. 202 of 1960. This appeal was preferred from jail by the appellant Ramballabh Jha who was convicted under Section 302, Indian Penal Code, and sentenced to undergo rigorous imprisonment for life. The appeal was listed for final hearing and it was disposed of by this Court on the 11th of January, 1962. The appeal was dismissed. Thereafter, on the 14th of February, 1962, the present application was filed by the learned advocate Mr. Mahendra Kant Choudhary stating that he had filed Vakalatnama on behalf of the appellant long before the case was put up on the daily list, but through inadvertence somewhere in the office his name did not appear as counsel for the appellant on the daily list. The result of this was that he had no information of this appeal having been listed for hearing and accordingly, it was decided without his being heard by the Bench, treating it to be a jail appeal as it was originally tiled. His grievance is that his failure to appear in the appeal on behalf of the appellant was not due to any laches or negligence on his part but on account of the error on the part of the office of the High Court, because, according to the settled practice, when the daily list is printed showing the number of the case, the name or names of the parties and those of the counsel, every member of the Bar engaged relies upon the daily list for in-formation as to whether the particular case in which he has been engaged has been put up in the list or not. In the circumstances, therefore, it should be held that judgment has been delivered in this appeal by the Bench without giving him the reasonable opportunity to argue the appellant's case, and the appellant is entitled to a re-hearing.

(2.) In this connection, Mr. Raghunath Jha appearing in support of the application for re-hearing has drawn our attention to Sections 369, 421 and 561A of the Code of Criminal Procedure (the three relevant sections) for decision of the point raised in this petition. Section 369 provides, in so far as it is relevant, that no Court when it has sighed its judgment shall alter or review the same except or correct a clerical error. He concedes that if Section 369 were to be read in isolation, the language being mandatory and comprehensive, it would not be open to any Criminal Court including the High Court to alter or review the judgment once it has been pronounced and signed. But his main contention is that this, however, is subject to the provisions of Section 421 of the Code, sub-section (1) of which runs thus:

(3.) It may be stated that the decisions of the Calcutta High Court, Travancore-Cochin High Court and that of Sind Judicial Commissioner's Court are all decisions of the Full Bench of those Courts respectively. The observation in ILR 14 Cal 42, upon which reliance was placed by the learned counsel for the State, however, is not relevant for answering the question which has been raised in the present petition. That was a case in which a Division Bench of the Calcutta High Court reversed the verdict of acquittal by the jury who found the accused person not guilty and convicted and sentenced him to one year's rigorous imprisonment and a fine of Rs. 100/- or, in default, to suffer six months rigorous imprisonment. Subsequently, an application was filed on behalf of the accused for appointment of a Bench to re-hear the application to review the order. The learned Chief Justice constituted the Full Bench accordingly of five Judges to hear the matter as to whether it was open to the Court to review the judgment which was duly pronounced by a Division Bench after hearing the counsel for the accused. They held, in the circumstances, that there was no power in the High Court to review the judgment in a criminal case inasmuch as it became absolute as soon as it was pronounced and signed by the Judge; the High Court after that became functus officio and neither the Court itself nor any Bench of it had the power to interfere with it in any way. That was a judgment pronounced by a Division Bench. It is clear, therefore, that the above case does not stand in the way of accepting the argument in support of the present application. As opposed to it, however, Scott-Smith and Zafar, Ali, JJ. of Lahore High Court in AIR 1925 Lah 355 have held that where an appeal has been dismissed without the appellant or his pleader being given a reasonable opportunity of being heard in support of the same, the order dismissing the appeal must be held to have been passed without jurisdiction and the Court has inherent power to make an order that the appeal should be reheard after giving the appellant or his counsel a reasonable opportunity of being heard in support of the same. The learned Judges referred in that connection to Gibbons' case, ILR 14 Cal 42 (FB), quoted above as also to another decision of the Calcutta High Court in Rajab Ali v. Emperor, ILR 46 Cal 60: (AIR 1919 Cal 409) and other cases and pronounc-ea the above dictum. The matter came up for consideration also before a Full Bench of the Judicial Commissioner's Court of Sind in AIR 1935 Sind 84 and Rupchand Bilaram, A. J. C, after elaborate consideration of the cases of the various High Courts observed as follows: