CHANDRIKA Vs. REX

JUDGEMENT

(1.) This is an application for the rehearing, of an appeal which was decided and dismissed on 25 June 1948, under the following circumstances.

(2.) On an application being made, a date was fixed for the hearing of the appeal. That date happened to be 5 July 1948. By a mistake of the office, however, the case was listed for hearing earlier and was heard and disposed of on 25 June 1948, ten days before the date fixed for its hearing; Mr. Rai Rajeshwari Prasad, learned Counsel for the appellant, under the belief that the case could not be taken up before 5 July 1948, was not at Allahabad and, therefore, no appearance was made on behalf of the appellant when the case was heard. The appellant was, thus, deprived of an opportunity of being heard before the case was decided against him. There cannot be the least doubt that these facts constitute a sufficient cause for setting aside the proceedings, starting with the hearing of the appeal and terminating with judgment, inasmuch as by a mistake on the part of some clerks of this Court great injustice has been done to the appellant, as he was deprived of an opportunity of being heard. The hearing of the appeal under the circumstances indicated above, amounted to an abuse of the process of the Court, although it was not deliberate and only inadvertent.

(3.) Learned Counsel, appearing for the Crown, has not contested that sufficient cause has been -made out for the re-hearing of the appeal. His contention, however, is that the Court has no jurisdiction to grant a rehearing. He has relied upon Section 369, Criminal P.C. which reads as follows: Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court established by Royal Charter, by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error. The contention is that this Court has got no jurisdiction to review a judgment in a criminal case. The learned Counsel has also relied upon Section 430, Criminal P.C., which runs as follows: Judgment and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided For in Section 417 and Chap. XXXII. It will be convenient to dispose of the latter objection first, namely, the objection based upon Section 430, Criminal P.C. The expression "judgment shall be final" or expressions to the similar effect are also to be found in statutes other than the Criminal Procedure Code and they have come up for interpretation before this Court in several cases. It has been consistently held by this Court that all that such expressions mean, is that the judgment shall not be open to any further appeal and that the powers of High Court to interfere with it otherwise than in appeal are not taken away: (vide Shah Chaturbhuj V/s. Shah Mauji Ram and Ashraf V/s. Saith Mal . There is, thus, no force in the contention that Section 430, Criminal I.P.C. is a bar to the granting of this application.