Decided on July 16,1993

STATE OF JANDK Respondents

Referred Judgements :-



- (1.)THIS review petition has arisen out of an order to have been passed by this Court on 27 -10 -1992, whereby the criminal revision petition, preferred by the petitioner Surjeet Kumar against the order of his conviction and sentence passed by the trial Magistrate 1st. Class Hiranagar and subsequently confirmed by the learned Sessions Judge, Kathua by his order dated 30 -4 -1985, was dismissed holding that no cogent or reasonable ground was put forward by the petitioner for interference by this court for any of the reasons, either on the basis of law or on the merits of the case. The aforesaid order was passed by this Court when nobody appeared for the petitioner and the State -respondent was represented by the Addl. Advocate General, Mr. R. C. Gandhi.The review of the aforesaid order dated 27 -10 -1992 is sought on the ground that the same has been made in absence of the petitioner and thereby great injustice has been done to him by the order passed by the this Court, which is clearly against the principles of natural justice, as no opportunity has been provided to him to clarify the stand taken in his defense, and show that the proper trial has not taken place in the case.
(2.)AFTER issuing notice to other side, Mr. A. Kapoor, appeared for the respondent and he did not file any objection but addressed the argument in the matter.
(3.)HEARD learned counsel for the parties; also bestowed my thoughtful consideration over the record on the file.
At the outset it can be said that the, power of review is unknown to the Criminal Procedure Code and on a thorough analysis of the judicial precedents laid down in the Country, it is discovered that on the question whether under section 561 A Criminal Procedure Code, the High Court has the power to revoke, review or re -call its order in a criminal case, the judicial opinion is divided in the country. Some of the High Courts have held that such a power lies with the High Court, but some of the High Courts have expressed a contrary view The matter which emerges for the decision of this Court is as to whether this court has the power to revoke, review or recall its own decision in a criminal revision, and re -hear the case in respect of a decision announced previously by this CourtSuch a question has been dealt with at length in a full Bench judgment of this Court reported in K.L.J. (1982) 55: titled : Prem Singh vs. State and another, wherein it has been a shown as to in what circumstances this Court has the power to review, revoke or alter its previous order and it has been held that when it is found that the order passed by the trial court is a nullity, then the Appellate Court or the provisional Court, as the case may be, has the power to proceed to hear the case, as if the order already passed by it did not exist and Section 369 of the Criminal Procedure Code, would not stand in its way. It is material to make mention of Section 36 of the Criminal Procedure Code,1898, which is applicable in rest of the Country, and reads as under: -

Save as otherwise provided by this Cole or by any other law for the time being in force, or, in the case of a High Court by the Letters Patent or other instrument constituting such High Court no court when it has signed its judgment shall alter or review the same, except to correct a clerical error."

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