2 S.C.R.

SUPREME COURT REPORTS

SANKATHA SINGH

STATE OF U.P. (S. K. DAs, K. SUBBA RAo and RAGHUBAR

DAYAL, JJ.)

Criminal Procedure-Appellate Court's power to e-hear appeal after having dismissed it earlier-Code of Criminal

l'rocedure, 1898 (Act V of 1898), sa. 367, 369, 424.

The question for decision was whether a crimi?al appellate court could order the re-hearing of an appeal which it had earlier dismissed, when neither the. appellant< nor their counsel appeared, holding that it h.ad perused t.he record of the case and saw no reason for interference with the triaJ court's order.

Held, that the appellate court's omission to write a detailed judgment in a criminal appeal in which neither the appellant nor his counsel appeared might not be in compliance with the provisions of s.367of the Code of Criminal Procedure and might be liable to be set aside by a superior court, but 'vill not give that court itself power to set it aside and rehear the appeal.

At the re-hearing of the appeal the successor of the appellate court was competent to consider, on an objection bei?g raised by the other party, whether the appeal was vahdly up for hearing before him.

Section 369 read with s. 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a court.

Inherent powers of the court cannot be exercised to do what the Code specifically prohibits the court from doing.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 145 or 1959.

Appeal by special leiive from the judgment and order dated March 19,1959, of the Allahabad High Court in Criminal Revision No. 1299 of 1957.

8. P. Sinha and P. C. Agarwala, for the appellant.

G. C. , fathur and C. P. Lal, for the respondent.

1962. January 25.

The , Judgment of the Court was delivered by

January 25.

Jt16Z

8...Uth• s i•th

S1<1t1 •JU. P.

R•g,,.har Dayal J.

818 SUPREfE COURT REPORTS [l!l62) Sl'PP.

RAORUBAR DAYAL, J.-Sankatha Singh and others appeal against the order of the All aha had High Court diFmissing their application for revisrnn

of the order of the Sessions Judge, Gyanp ur, holding the ordl'r of his predeceBSor for the rehearing of an appeal which had bPen dismissed earlier to hi" ultra 1Jires and without jurisdiction and directing the Magi8trate to take immediate steps to l'Xecute thi> order passed by it, according to law.

The appellants were convicted by the Magistrate, I Class, Gyanpur, of offences under ss. 452 and 323 read with s.34, I.P.C. Kharpattu, one of the appellants, was also convicted of an offenco under s. 324, J.P.C. They appealed against thrir Ponviction.

The appPal was fixed for hearing on XoYemher 30, 1956. On that <lat(', noilht'r t:1e appellants nor their counsel appPared in Court and the learned Sessions Judge dismissed thl' appeal.

The rel"'ant portion of his order is :

"The appellants have beon absent, and their learned counsel has also not appeared to :uguc the appeal on behalf of the appel- J.mts.

I have perused the judgment of the learned Magistrate and seen the record. I find no ground for any interference. The appeal is accordingly dismissed."

On December J 7, 1956, an application was presPntcd hy the appellsnts praying that the P.ase he restond to its original numbor so that justico he doirn to t h"m.

In expl11.ining their absence from Court on thn <lato of hearing, it was said that they reRchcd the Court somewhat lntc due to the Ekka,

by which they were travellin~" over turning arcidontally on the way and, ru1 a result, lht>ir getting

injurit•s. This application was allowed, on July 2, I !l5i, hy the lcarne<l Sessions Judge, Sri Tej Pal Singh, who had dismissed the appeal. His reasons for allowing the application appear, from his orde1,

2 S.0-.lt.

SUPREME COURT REPor.rs 819

to be that the apnlioation' supported by an affidavit, showed that there was sufficient cause for the non-appearance of the appellants-accused at the time of the hearing of the appeal, that s. 423 of the Code of Criminal Procedure (hereinafter called the Code) enjoined the appellate Court to dispose of the appeal on merits after hearing the appellant or his pleader and the Public Prosecutor, that no notice was ever isAued to the appellants as required bys. 422 of the Code, that s. 367 of the Code la.id down what a judgment should contain and that his judgment of November 30, 1956, amounted to no judgment as it did not contain some of those salient points, that the judgment was without jurisdiction as the case was not really considered and no independent judgment was arrived at and

tht it was necessary that the appeal be re-heard in the ends of justice.

Sri Tripa.thi, who succeeded Sri Tej Pal Singh as Sessions Judge, and before whom the appeal was put up for re-hearing, was of the opinion that the appellate Court had no power to review or restore an appeal which had been disposed of and that therefore the order of his predecessor dated July 2, 1957, was ultra vires and passed without jurisdiction.

Against this order, the appellants went in revision to the High Court. The learned Judge of the High Court agreed with the views of Sri Tripatbi and accordingly, dismissed the revision application.

The sole point for determination in this appeal is whether Sri Tej Pal Singh could set aside his £rot order dat.Ad No>ember 30, 1956, dismissing the appeal, when neither t.he appellants nor their counsel appeared and could order the re-hearing of the appeal. We are of opinion that he could not do so and that therefore the view taken by the High Court is correct.

Sankatha Singh

v. ,)tare of U. P.

Ragl.ubar Dayal J.

Bal11Aa Bm16

v. 8..U of U. P.

BogMbor D41'1 J.

820 SUPREME OOURT REPORTS [1962) SUPP.

A criminal appeal cannot be dismiBBed for the default of the appellants or their counsel. The Court has either to adjourn the hearing of the appeal to enable them to appear, or should consider the appeal on merits and p&SS the final order. Sri Tej Pal Singh was a.ware of this as his order itself indicates.

He did not dismiss the appeal for default. He himself perused the judgment of the Magistrate and the record and did consider the merits, as he says in his order : 'I find no ground for any interference'. The mere fact that he ha.d not expreBSed his reasons for coming to that opinion does not mean that he ha.d not considered the material on record before coming to the conclusion that there was no case for interference. His omission to write a detailed judgment in the circumstances may be not in eomplianci> with he

provisions of s. 367 of the Code and may be liable to be set as.ide by a superior Court, but will not give him any power to set it aside himself, and

rehear the appeal. Section 369, rea.d withs. 424, of the Code, makes it clear that the appellate Court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error.

Sri Tej Pal Singh was in error when he thought that s. 423 of the Code enjoined the appellate Court to dispose of the appeal after hea.ring the appellant or his pleader and the Public Pro- Becutor.

He omitted to notice tho words 'if he appears' aftP-r tho expros.ion 'and hearing the appellant or his pleader'. If none of these appears at the hearing, the appellate Court can proceed with the disposal of the appeal on merits. Of <'ourse, a notice to t, he appellant or his counsel of the date of hearing is an rssential precedent for the hearing of the appeal, in view of s. 422 of the Corle, Sri Tej Pal Singh states, in his order dated ."tu]_,. 2. I p,;7 :

2 S.C.R.

SUPREME COURT RE FORTS 821

"It will also appear that the conditions of s.422, Cr. P. C. were also not fulfilled, as no notice was ewir issued to the appellant." Ho again missed noticing that a notice of the hearing of the appeal has to be given either to the appellant or to his pleader and need not be given to both. He does not say in his order_ that no notice of the date of hearing had been given to the appellants' counsel. The practice, usually, is to gi've notice of the date of hearing of the appeal to the counsel who informs the appellant, and not to the appellant personally. The application for restoration indicates that the appellant knew of the date of hearing.

It has been urged for the appellants that Sri Tej Pal Singh could order the re-hearing of the appeal in the exeroise of the inherent powers which every Court possesses in order to further the ends of justice and that Sri Tripathi was not justified in any case to sit in judgment over the order of Sri Tej Pal Singh, an order passed within jurisdiction, even though it be erroneous. Assuming that Sri Tej Pal Singh, as Sessions Judge, could exercise inherent powers, we a.re of opinion that he could not pass the order of the re-hearing of the appeal ii:J. the exercise of such powers when s. 369, read with s. 424, of the Code, specifically prohibits the altering or reviewing of its order by a Court. Inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing. Sri Tripa.thi was competent to consider when the other party raised the objection whether the appeal was validly up for re-hearing before hiru. He considered the question and decided it rightly.

It i~ also urged for the appellants that Sri Tej Pal Singh, had the jurisdiction to pass orders on the application presented by the appellants on December 17, 1956, praying for the re-hearing of the appeal and that therefore his order could not

Sankalha Sin1h

Stahoj U.P.

Stot.ofU. P.

Rogllubar DaJol J,

IHJ

822 SUPREME COURT REPORTS [l9o2] SUPP.

b.e said to have been absolutely without jurisdict10n. We do not agree.

He certainly had jurisdiction to dispose of the applimtion presented to him, but when s. :l69, of the Code <ldinitcly pi ohiLited the Court's reviewiug or alteriug it8 judgment, he had no jurisdiction to con8ider the point raised and to set aside the order di8rnissi11g the appeal and order its re-hearing.

We therefore see no force in this appeal and accordingly dismi8s it.

A ppe.al d ismis;; t d.

THE MANAGE:IJE~T OF U.B. DUTT & CO.

WORKMEN OF U.B. DCTT & CO. (P. B. GA., JE!'IDRAGADKAR, A. IC SARKAii and K. N. WANCllOU, JJ.)

Induatrial Dilpul<-1'ermination of .•m.ice of employee in lerln6 of contract-Dropping of propnsed deparlrrumtal •nquiry -If colcurable exercise of power-If ca11 be questioned before i11d1Utrial-tribu1.al-Principle tuminating Government Service -If IJf>Plits to indUdtrial emplcyeu.

S, employed by the appellant as a cross cutter in the saw mill was asked to show cause why his services should not be terminated on account of grave indiscipline and misconduct and he denied the allegations of fact.

He was thereafter informed about a department enquiry to be held against him and was suspended pcding enquiry. Purporting to act under r. 18(a) of the Standing Orders, the appellant terminated the services of S, without holding any departmental enquiry. The industrial tribunal to which the dispute was referred held, that action taken, after dropping the proposed departmental pro ceedings was not bonafid< and was a colourable cx.rcisc of the power conferred under r. 18(a) of the Standing Order and aince no attempt was made before it to defend such action by proving the alleged misconduct, it passed an order for reinstatement of S. The appellant contended that as the termination was strictly in accordance \Vith the terms of contract under r. 18(a) of the Standing Ordcn, it was entitled to dispense