CHHABILDAS SHANTILAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present petitioner was Respondent No. 2 in Misc. Criminal Application No. 1936/83 (hereinafter referred to as the previous application). The previous application was heard and disposed of by this court by the judgment dated 2nd May, 1984. This court was informed that the Respondent No. 2 was served but had remained unrepresented by choice. The said respondent No. 2 in the previous application filed the present application on 19th September, 1984 written in Gujarati language and presented personally before the court. In this application, the petitioner has made out a case that he was not served with the notice of the previous application and that when he came to know about the aforesaid judgment of this court in the said application, he rushed to this court stating that the aforesaid judgment was rendered without hearing him as he had no notice or informtion about the previous application. This court issued Rule on the State of Gujarat as well as the petitioner of the previous application who was the original complaint.

(2.) Mr. H. D. Chudasama, the learned counsel for the petitioner submits that the present petitioner not having been duly served and therefore not heard, the aforesaid judgment is not binding on him and that the said judgment is not legally a valid judgment as far as he is concerned. Mr. Chudasama therefore submits that the previous application may be re-heard and after hearing the present petitioner, the matter may be decided according to law. Mr. Chudasama has relied on the decision in Bombay Cycle and Motor Agency Ltd. v. Bhagwanprasad Ramraghubir Pandey and Others, 1975, Criminal Law Journal, 820, where the Division Bench of the Bombay High Court has held that where the judgment pronounced is without jurisdictio or is delivered in violation of the principles of natural justice or is obtained by an abuse of process of court, the High Court can in its inherent power rehear the case because the judgment rendered by the High Court without hearing a party and in contravention of the principles of natural justice, is no judgment at all and therefore the re-hearing is not a review or a revision over the previous judgment. Mr. Chudasama has urged that although this judgment is based on Section 561-A of the Criminal Procedure Code, 1898, its principles would apply to the corresponding provision, i.e. Section 482 of the New Code. Mr. Chudasama has therefore urged that under Section 482 of the Criminal Procedure Code, 1973, it is open to this court to rehear the previous application in the exercise of its inherent powers.

(3.) Mr. S. T. Mehta, the learned Additional Public Prosecutor has urged that once the High Court has disposed of a matter on merits, it has no power either inherent or under the provisions of the Code to review its own judgment. Mr. Mehta has relied on the decision in State of Rajasthan v. Gurcharandas Chadha, AIR 1979, SC 1895, where in the Supreme Court has held that the High Court has no power to review its previous judgment or alter it once it has been signed. The ratio of this case is not applicble to the facts and circumstances of the present case inasmuch as in that case, there was a second revision filed in review the earlier judgment. The Supreme Court held that such second revision ws not maintainable as the High Court had disposed of the matter on merits and it had no power to review its own judgment. In the present case, the judgment rendered by this court in absence of one of the parties, who was not served the process, it is no judgment at all as far as the present petitioner is concerned and therefore, it is not the case of the court reviewing its own judgment but it is a case where the earlier judgment having been shown to be a nullity, it is non-existent and therefore ineffective. The previous judgment being a nullity, the application will have to be heard all over again as if it was not heard before. The application will be heard only after the present petitioner has been duly served and has an opportunity to present his case. The respondents have not shown any provision of law which prevents this court from re-hearing the application in exercise of its inherent powers under Section 482 of the Criminal Procedure Code, 1973. Hence, the submission of Mr. Mehta fails and is rejected.