BHIMA NAND AND ORS. Vs. THE STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THIS is an application under Section 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 win, that Bhima Nand and two others were convicted under Section 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 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 he first Information Report was instituted on November 14, 1968 and all the three accused were sent up for tnal(sic) for the offence under Section 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 Session 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 -imple(sic) imprisonment for two months. Against that decision of the learned Sessions Judge the 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 under Section 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.

(2.) THE learned Advocate General submitted that in view of Section 362 of the Code, the Court is precluded from reviewing its own judgment, except to correct a clerical or arithmetical error. In other words, that he submits is that the inherent power of the High Court under Section 482(sic) 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 Cods 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 Ors. v. The State : AIR 1959 All 315 Full Bench. It was observed by the learned Judges that Section 661 -A of the Code of 1898 which conferred inherent power upon High Court, as is done by Section 482 of the new Code, realty 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 his power to revoke review, recall or alter its(sic) own earlier decision in a criminal revision and can re -hear the same. The principle embodied in this decision was followed in Chhotey and Ors. v. Ram Prasad and Anr. : AIR 1970 All 380 and Chitowan and Ors. v. Mahboob llahi, 1970 C L J 378. Similarly the Punjab High Court in Lal Singh and Ors. v. State and Ors. : AIR 1970 P&H 32 has also adhered to the view that the High Court has inherent powers under Section 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 and Ors. v. State of Uttar Pradesh : AIR 1962 S C 1208. But that case did not relate to the inherent power of the High Court under Section 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 ordered 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 under Section 561 -A, in that case.

(3.) THE learned Counsel submitted that the three accused were public servants and a conviction under Section 325, I.P. Code, may affect their career. I do not think a decision against them for an offence under Section 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 in -herent powers conferred on the High Court.