Bhima Nand etc. vs The State of Himachal Pradesh

D.B. Lal, J.—This is an application u/s 482 of the Code of Criminal Procedure 1973, for review of the order passed by this Court in Criminal Revision No. 89 of 1972 on April 11, 1975. The facts in the case which came up for revision were, that Bhima Nand and two others were convicted u/s 325, I.P. Code, by the Judicial Magistrate, First Class, Kandaghat, for having way laid one Med Ram while he was going to his village on the evening of November 12, 1968, and thereby giving him a beating by lathis. Med Ram received several injuries and he was subsequently examined by the Medical Officer of the Ripon Hospital. The First Information Report was instituted on November 14, 1968, and all the three accused were sent up for trial for the offence u/s 325 read with Section 34 of the I.P. Code. After examining the prosecution evidence, the learned trial Magistrate convicted the three accused and sentenced them each to pay a fine of Rs. 500/- and in default to undergo simple imprisonment for six months. The three accused came in appeal before the learned Sessions Judge, but their conviction was maintained. However, the sentence of fine awarded to two of the accused was reduced to Rs. 300/- and in default simple imprisonment for two months. Against that decision of the learned Sessions Judge three accused came in revision before the High Court. They did not succeed and after considering their case on merit the revision was dismissed by an order of this Court dated April 11, 1975. Now they have filed the present application for review of that Judgment and the allegations are, that certain material facts were not considered by the High Court and the decision was wrong, that the First Information Report was delayed and the prosecution case was doubtful, and that the defence version of alibi should have been believed. In other words, the three accused want the case to be reviewed on the very same evidence which was considered by the two Courts below and by the High Court and every time the decision was against them. A casual ground has also been taken in the application u/s 482 that the Petitioners were not given personal hearing which is neither here nor there, as no personal hearing was required to be given in the case of revision which was argued by the counsel representing the accused.

The learned Advocate-General submitted that in view of Section 362 of the Code, the Court is precluded from reviewing its own judgement, except to correct a clerical or arithmetical error. In other words, what he submits is that the inherent power of the High Court u/s 482 cannot be exercised and the Judgment pronounced in criminal revision cannot be altered or reviewed in any manner. The learned Counsel for the Applicants, on the other hand, contends that Section 362 itself is subject to Section 482 and nothing contained in Section 362 limits or affects the inherent power of the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In support of his contention the learned Counsel relies on Raj Narain and Others Vs. The State, Full Bench, It was observed by the learned judges that Section 561A of the Code of 1898 which conferred inherent powers upon High Court, as is done by Section 482 of the new Code, really saved such inherent powers which the High Court possessed from before. This power has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests specifically laid down in the section itself, namely to give effect to any order under the Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. It was held in that case that the High Court has power to revoke, review recall or alter its own earlier decision in a criminal revision and can re-hear the same. The principle embodied in this decision was followed in Chhotey and Others Vs. Ram Prasad and Another, and Chitwan and Ors. v. Mahboob Ilahi 1970 CL J 378 , Similarly the Punjab High Court in Lal Singh and Others Vs. State and Others, , has also adhered to the view that the High Court has inherent powers u/s 561-A and can review its earlier decision in a criminal revision and re-hear the same. The learned advocate General relied on Sankatha Singh Vs. State of U.P., But that case did not relate to the inherent power of the High Court u/s 561-A but referred to the inherent power which may be considered to be reposed in the Sessions Judge, who reviewed his previous decision and order for the re-hearing of the appeal which was dismissed by him for default of appearance. The Supreme Court held that the inherent power could not be exercised and the Sessions Judge could not review his previous decision dismissing the appeal, at the same time holding that the previous, decision in appeal was itself on merit. However, the fact of the matter is that the Supreme Court was not called upon to decide in respect of the inherent powers of the High Court u/s 561-A in that case.

Therefore, assuming that the High Court has inherent jurisdiction to review its earlier decision given in a criminal revision, nonetheless the Applicants have to satisfy that circumstances are made out for exercise of that power. It cannot be stated that any order made under the Code has been violated or any order is necessary to prevent abuse of the process of the Court or otherwise to secure the ends of justice. The purpose of review can never be the purpose of re-hearing a revision which has been duly heard on merit and decided by the Court.

The learned Counsel submitted that the three accused were public servants and a conviction u/s 325, I.P. Code, may affect their career. I do not think a decision against them for an offence u/s 325, I.P. Code, necessarily involves moral turpitude so that it may reflect upon their service career. At any rate, that cannot be a ground for interfering in review especially in exercise of the inherent powers conferred on the High Court.

In this view of the matter, I do not find any merit in the petition and the same is dismissed.