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N. Dhinakar, J.—This petition in Crl.M.P.SR.No.26882 of 2000 in Crl.R.C.No.832 of 1998 is filed u/s 482 of the Code of Criminal Procedure by the petitioner in Crl. R.C. No.832 of 1998 after its disposal with a prayer to recall the order dated 9.8.2000 passed by this Court in the above revision. The Registry returned the petition with an endorsement that the petition is not maintainable. Thereafter, the counsel re-presented the petition by stating that u/s 401(2) of the Code of Criminal Procedure no order under the Section shall be made to the prejudice of the accused or other person unless he had an opportunity of being heard either personally or by pleader in his own defence as otherwise principles of natural justice is denied as enshrined in maxim ''audi alteram partem'' There was a further endorsement that though, there is a bar u/s 362 of the Code of Criminal Procedure or the Court to revoke, alter or review the judgment, the High Court has inherent power u/s 482 Cr.P.C. and the same can be invoked to secure the ends of justice by recalling the order earlier passed on 9.8.2000 in the main revision and that Section 362 Cr.P.C. is not attracted in view of the judgment of Rajasthan High Court in Habu Vs. State of Rajasthan, and he has further requested the Registry to post the matter before the Court if the office is not satisfied with the explanation. The Registry thereafter, has posted the petition before this Court for deciding the question of its maintainability.
Before 1 give my finding on the petition as to the maintainability, few facts have to be mentioned. Crl.R.C.No.831 of 1998 was filed by the petitioner/accused against the conviction and sentence imposed upon him under Sections 279 and 338 of the Indian Penal Code. The revision was admitted and notice was ordered to the other side. This Court did not call for the records from the trial Court at the time of admission of the revision. The matter was posed for hearing on 9.8.2000 and when it was taken up. there was no representation. Thereafter, the matter was heard on merits and this Court perused the judgment of the Courts below as well as the grounds and thereafter, passed the order dismissing the revision.
Learned counsel appearing for the petitioner submits that this Court has power u/s 482 Cr.P.C. to recall the above judgment dated 9.8.2000 in view of the inherent powers of this Court. According to him. though Section 362 Cr.P.C. prohibits the Courts from altering on reviewing the judgment, it can recall the order already passed and it does not prohibit this Court from recalling the earlier order by invoking the inherent powers inherent in this Court as recognised by Section 482 Cr.P.C. In support of his plea, he relies upon a judgment of a Full Bench of Rajasthan High Court in Habu Vs. State of Rajasthan, have perused the said judgment. With great respect to the learned Judges. I am unable to agree with the view expressed in the said judgment by the learned Judges. It is to be noted at this stage that what a person cannot achieve directly, he cannot achieve it indirectly. If the petitioners contention is accepted and Section 482 Cr.P.C. is invoked by this Court to recall the earlier order passed on 9.8.2000, then this Court has to re-hear the case and pass a judgment which in effect, amounts to reviewing or altering the earlier judgment passed on 9.8.2000 which is prohibited u/s 362 Cr.P.C. It is to be remembered at this stage that this order dated 9.8.2000 was passed after perusing the judgments of the Courts below and after hearing the learned Public Prosecutor and the revision was not dismissed for default. In this connection. Section 403 Cr.P.C. is also to be considered which was not taken into consideration by the learned Judges of the Rajasthan High Court when they delivered the above judgment. Section 403 Cr.P.C. postulates that save as otherwise expressly provided by this Code, no party has any right to be heard either personally or by pleader before any Court exercises its powers of revision; but the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader. In view of Section 403 Cr.P.C. the petitioner, therefore, cannot claim as a right that he must be heard personally or by his pleader when the Court is exercising its revisional jurisdiction.
Learned counsel further submits that Section 401 Cr.P.C. contemplates that the Court while exercising the powers of revision can also exercise all the powers of the appellate Court including the powers conferred in a Court of Appeal under Sections 386. 389. 390 and 391 Cr.P.C. or on a Court of Session u/s 307 Cr.P.C. Relying upon the above provision counsel submits that the appellate Court u/s 386 Cr.P.C. has to dispose of the appeal only after perusing the records and hearing the appellant or his pleader and also the learned Public Prosecutor, if he appears. It is his submission that since the revisional Court can exercise all the powers of the appellate Court and Section 386 Cr.P.C. contemplates that the appeal can be disposed of only after the perusal of the records, the revisional Court while exercising the powers of revision cannot dispose of a revision without the perusal of the records 1 am afraid, the said contention is fallacious. A combined reading of Sections 386 and 401 Cr.P.C. only shows that the High Court while exercising the powers of revision can also exercise the powers of an appellate Court and it does not say that the Court has to consider the revision only after the perusal of the records and also hearing the learned Public Prosecutor It is his contention that the revisional Court can dispose of a revision only on hearing the party or his pleader in person as according to him. Section 401 Cr.P.C. r/w. Section 386 Cr.P.C. contemplates on such a course. If such an interpretation has to be given as contended by the counsel, then, violence will be caused to Section 403 Cr.P.C. Sub-section (1) of Section 401 Cr.P.C. is an enabling provision enabling the High Court to exercise the powers of an appellate Court while dealing with the revision, but. it does not confer a power which is prohibited by the Code. If the argument of the counsel is accepted, then, it will not only cause violence to sub-section (3) of Section 401 Cr.P.C. which contemplates that the High Court shall not convert a finding of acquittal into one of conviction which power can be exercised by the High Court while dealing with an appeal against acquittal, but also cause violence to Section 403 Cr.P.C. The Sections in the Code must be read harmoniously and the interpretation of any Section in the Code must be consistent with any other provision in the Code The above argument has to be considered in the background of Section 403 Cr.P.C. As stated if the contention of the counsel is accepted. there cannot be a harmonious construction of Sections 386. 401 and 403 Cr.P.C. The contention of the counsel relying on. Sections 401 and 386 Cr.P.C. therefore, has to be rejected and it is accordingly, rejected.
in Pampapathy Vs. State of Mysore, the Supreme Court while considering the inherent powers of the High Court u/s 561-A of the Code of Criminal Procedure. 1898 which corresponds to the present provision u/s 482 Cr.P.C. observed that the inherent power of the High Court mentioned in 561-A of the Code of Criminal Procedure 1898 (corresponding to Section 482 Cr.P.C.) can be exercised only for either of the three purposes specifically mentioned in the section. The inherent power cannot be invoked in respect of any matter covered by the specific provisions of the Code. The Supreme Court further held that it cannot also be invoked if its exercise would he inconsistent with am of the specific provisions of the Code (emphasis is supplied). It is only if the matter in question is not covered by any specific provisions of the Code that Section 561-A (corresponding to Section 482 Cr.P.C.) of the Code can come into operation and no legislative enactment dealing with the procedure can provide for all cases that can possibly arise and it is an established principles that the Court should have inherent powers, apart from the express provisions of law which are necessary to their existence and for the proper discharge of duties imposed upon them by law. The Supreme Court further held that the above doctrine finds expression in Section 561-A Cr.P.C. which does not confer any new powers on the High Court, but merely recognises and preserves the inherent powers previously possessed by it. The law laid down by the Supreme Court in the above judgment apply with all force to the facts of this case
As held by the Supreme Court, if there is a specific bar. this Court cannot exercise its inherent power by invoking Section 481 Cr.P.C. As stated earlier Section 362 Cr.P.C. specifically bars reviewing or altering the judgment and under the circumstances, this Court cannot exercise the powers u/s 482 Cr.P.C. under the garb of recalling the earlier order which in effect amounts to reviewing or revoking the earlier order. It is to be stated at this stage, at the risk of repetition, that if the order is recalled, it amounts to altering or reviewing the same which is prohibited u/s 362 Cr.P.C. At this stage, Section 482 Cr.P.C. also has to be looked into vis-a-vis Section 362 Cr.P.C. Section 482 Cr.P.C. contemplates that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice (emphasis supplied). The provision, as seen in Section 482 Cr.P.C. contemplates that the Court can exercise the inherent powers and make orders to give effect to any order under this Code. If the present prayer of the petitioner is accepted, then this Court will not be giving effect to any order under this Code; but, on the contrary, will be defeating the provisions of Section 362 Cr.P.C. Therefore. Section 482 Cr.P.C. cannot be invoked to defeat the orders of the Code, but can be invoked only to give effect to it.
A learned single Judge of this Court in Anthony Das v. State 1963 MWN (Cri.)67) while considering the inherent powers of the Court u/s 561-A of the old Code (corresponding to Section 482 Cr.P.C.) held relying upon a Full Bench decisions of this Court in Public Prosecutor vs. Nagi Reddi 1962 M.LJ. 588) that it is well settled that Section 561-A of the Code does not confer any new powers on the High Court and that it only preserves such inherent powers of the High Court already possessed and that the High Court has in the exercise of its inherent powers has no right to set aside its own judgment on the ground that it is erroneous in law or on fact, (emphasis supplied). As stated earlier, if the prayer of the petitioner is accepted and the order is recalled, it will amount to setting aside the earlier judgment dated 9.8.2000 which is prohibited u/s 362 Cr.P.C. Learned single Judge of this Court further relying upon a judgment in Re. Arumugham Padayachi (1926) MWN 147) further stated that the judgment, even of a High Court, when it is signed become final and it is not therefore, open to review. Learned Judge was also of the view that the judgment of the High Court in criminal matter is final as soon as it is signed and thereafter the Court is functus officio and has no power to review or alter its decision. The learned Judge while laying down the law. also considered the contentions of the counsel for the petitioner, that, the revision was not heard on merits and he had no opportunity to put forward certain aspects of the case which would result in a decision in his favour, and rejected it. I am in respectful agreement with the learned single Judge on the views expressed in the above judgment.
In State of Orissa Vs. Ram Chander Agarwala and Others, the Supreme Court held that once a judgment has been pronounced by the High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or exercise the revisional jurisdiction The above judgment of the Supreme Court considered the principle as to the finality of the criminal judgment. The learned Judges concurred with the view expressed in U.J.S. Chopra Vs. State of Bombay, in which the Supreme Court has quoted with approval the following observations of Justice Fazal Ali in Janardan Reddy and Others Vs. The State of Hyderabad and Others,
It is true that there is no such thing as the principle of constructive res judicata'' in a criminal case, but there is such a principle as finality of judgment, which applies to criminal as well as civil cases and is implicit in every system, wherein provisions are to be found for correcting errors in appeal or in revision. Section 430. Criminal PC......has given express recognition to this principle of finality by providing that ''Judgments and orders passed by an Appellate Court upon appeal shall be final, except in cases provided for in S. 417 and Chapter XXXII.
The Supreme Court in UJS Chopra''s case (AIR 1955 SC 663) (cited supra) has further held as follows:
Section 417 relates to appeals on behalf of Government in cases of acquittal by any Court other than a High Court and Chapter XXXII relates to reference and revision which also are powers exercised by the High Court over the judgments or orders of inferior Courts, thus excluding from the purview of this exception all judgments and orders passed by the High Courts as an Appellate Court.
Section 430 does not in terms give finality to the judgments of the High Court passed in exercise of its revisional jurisdiction, but the same principle would apply whether the High Court is exercising its appellate jurisdiction or its revisional jurisdiction, because in either case the High Court which is the highest Court of Appeal in the State would have pronounced its judgment, which judgment would replace the judgment of the lower Court and would be final.
Even while exercising its revisional powers under S.439 the High Court exercises any of the powers conferred on a Court of Appeal by Ss.423, 426. 427 and 428 and it is in effect an exercise of the appellate jurisdiction though exercised in the manner indicated therein. This principle of finality of criminal judgments therefore would equally apply when the High Court is exercising the revisional jurisdiction
The above law laid down by the Supreme Court in U.J.S. Chopra Vs. State of Bombay, answers the contention of the petitioner" s counsel that the Court while exercising the revisional jurisdiction has all the powers of the appellate Court u/s 386 Cr.P.C. and so, the Court can recall the earlier order. The contention of the counsel therefore, has to fail and it fails.
A learned Single Judge of the Kerala High Court in Kannan v. Food Inspector (1965 MLJ (Crl) 391) held as follows:
The right of review is a creature of statute and in the absence of any provision in the Code of Criminal Procedure judgments cannot be reviewed by the High Court. If a Court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting the matters right in as much as the Court has jurisdiction to decide rightly as well as wrongly. If a Court has no jurisdiction to pass the order complained against, the High Court would have jurisdiction to declare the judgment a nullity but there is difference between inherent want of jurisdiction to entertain the matter and an irregular exercise of it. Therefore, in cases where there is no lack of jurisdiction, the High Court cannot review its own judgment.
I am in respectful agreement with the views expressed by the learned single Judge in the above judgment.
In Moti Lal Vs. State of Madhya Pradesh, , the Supreme Court reiterated the principle that the High Court cannot exercise the inherent powers to alter its earlier judgment in view of Section 362 Cr.P.C. Another learned Judge of this Court in Rangaswamy v. Narayanan (1965 MLJ (Cri.) 652) also took the view that the High Court cannot invoke its inherent jurisdiction as it is a bar u/s 362 Cr.P.C. as Section 561-A Cr.P.C. (corresponding to Section 482 Cr.P.C.) does not in any way enlarge the power under the Code especially when it is provided under the Code that no Court when it has signed the judgment shall alter or review the same. The judgment relied on by the learned counsel in Shyam Deo Pandey and Others Vs. The State of Bihar, will not apply to the facts of this case. The Supreme Court in the above judgment held that the requirement regarding the perusal of the record that has been sent for and received in the Court before disposing of an appeal cannot be treated as an empty formality. It is to be remembered that what was disposed of on 9.8.2000 is not an appeal but only a revision and further, this Court also did not call for the records at the time of admission and hence, there is no question of this Court perusing the records. As observed by me earlier Sections 386. 401 and 403 Cr.P.C. must have a harmonious construction and if the contention of the petitioner is accepted, then it will be causing violence to the provisions of Section 403 Cr.P.C. as well as to Section 362 Cr.P.C. which this Court cannot allow.
In view of the above discussions. I am of the considered opinion that the Crl.MP.SR filed u/s 482 Cr.P.C. by the petitioner is not maintainable and the Registry was justified in refusing to receive it. Crl.M.P.S.R.No.26882 is accordingly disposed of as not maintainable.