K KUNHAMMAD HAJI Vs. EMPEROR

JUDGEMENT

(1.) This appeal is by the third accused in S.C. No. 3 of 1922 on the file of the Special First Class Magistrate of Tirur, against the conviction and sentence therein. The Public Prosecutor opposes it on the ground that Criminal Appeal No. 395 of 1922 against the conviction, and sentence has already been dismissed by a learned Judge of this Court. The facts are, that Criminal Appeal No. 395 was presented by the accused under Section 420, Criminal Procedure Code, through the officer in charge of the Jail, where he is, on 6 May 1922, and was dismissed under Section 421, as it was out of time, by Krishnan, J., sitting as Vacation Judge on 2 June, 1922. The accused, presumably in ignorance of this, presented the present appeal on 17 July 1922 on the re-opening of the Court through Counsel. It is not disputed that, unless the decision of 2 June, 1922 can, on some grounds, be disregarded, we are debarred from disposing of the present appeal on the merits.

(2.) We have been asked, first, to meet this difficulty by treating the present appeal as an application for the revision of the previous decision of Krishnan, J. But that is not the way in which it is expressed; and in any case Section 439, Criminal Procedure Code, notwithstanding the reference to procedure ordinarily to trials in a High Court, does not empower a High Court to revise the judgment of one or more of its own Judges. For, that reference may be explained either, as it was by Mitter, J., in In the matter of Gibbons 14 C. 42 : 7 Ind. Dec. (N.S.) 29 as applicable to the exceptional cases in. which the High Court procedure has been extended to other Courts, or intended ex abundantii cautela to prevent any possible conflict with the letters Patent or other legislation by which High Courts are affected. It cannot be read as conferring or recognising by implication a power the existence of which is negatived by the wording of the remainder of the section. That is supported by the case already referred to, and the obvious anomalies, which the contrary view entails are probably, the reason for the absence of further authority against it. On behalf of the accused we have been referred to no case in which revision of the judgment of one or mere Judges of a High Court has been allowed. The conclusion must be that there is no power to revise it.

(3.) The next suggestion is, that the appeal before us should be treated as an application for a review of Krishnan, J s. previous order; and here again that is not the form of the petition. But, if that can be treated as immaterial, the accused relies next on the fact that the present appeal was, it happens, actually admitted by Krishnan, J., sitting in admission, and urges that this amounts to a setting aside by the learned Judge of his previous order and a re-opening of the case on its merits, such as takes place when an application for review is granted in civil proceedings. This can be rejected on the short ground that, as Mr. Srinivasagopalachariar admits on accused's behalf, the learned Judge was not conscious that there was any previous decision which would be a bar to the present appeal and which would have to be set aside before that appeal could be heard.