ORDER
Pritam Singh Safeer, J.
1. This a petition preferred Under Section 561-A of the Code of Criminal Procedure. It was on the 17th of March 1971, that I disposed of Criminal Miscellaneous (Main) No. 136 of 1970.
2. The Explanationn is contained in this petition as to in which circumstances Shri R.C. Chopra, counsel for the respondent could not be present on that date. The ultimate prayer is that the ex parte order dated the 17th of March, 1971, quashing the proceedings initiated by the complaint dated the 11th of May, 1970, against the petitioners in the aforementioned main petition be set aside.
3. Mr. N. S. Sistani, the learned Counsel appearing for the petitioners in Criminal Misc. (Main) No. 136 of 1970, who is the counsel for the respondents in Criminal Miscellaneous No. 264 of 1971, has raised a preliminary objection that the relief sought by the present applicants cannot be granted. His contention is that there is no provision in the Criminal Procedure Code for setting aside an order which may have been passed ex parte. He has referred in the first instance to U. J. S. Chopra v. State of Bombay : 1955CriLJ1410 .
4. For a correct appreciation of the questions of law arising before the Supreme Court it became necessary to be conversant with what is contained in paras 8 to 15 of that judgment. The court was considering as to what would happen in a case when a criminal revision is disposed of in liming and then an application is moved Under Section 439 (6) of the Code of Criminal Procedure (hereinafter called 'the Code') praying that the sentence imposed be enhanced. In paragraph 10 of the judgment the Supreme Court made a detailed reference to the view point presented by the different Judges constituting the Full Bench, the judgment whereof was reported as Emperor v. Atta Mohammad A.I.R. 1945 Lah 130. Mahajan, J. (as he then was) pointed out in his judgment that the amendment bringing in Sub-section (6) of Section 439 of the Code in its present shape gave a new and unlimited right to the subject. That was so because the Judge hearing the application for enhancement was bound to give an opportunity to the accused person to urge that the conviction itself was untenable. For that purpose the Bench dealing with an application Under Section 439 (6) of the Code was to go into the facts. His view was that the exercise of revisional jurisdiction was a matter of mere favor and a dismissal in liming of a revision petition amounted only to refusal to look into the record and was not a judgment as contemplated by Section 369 of the Code, which is ;-
369. Save as otherwise provided by this Code 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.
5. The observations contained in : 1955CriLJ1410 or the provision, quoted above, do not touch the prayer before me which in substance is that no hearing having been given to the respondent before making the order dated the 17th of March, 1971, a hearing should be given. This is the grievance.
6. Mr. Sistani has next relied on Ramautar Thakur v. State of Bihar : AIR1957Pat33 . It was observed by that High Court:-
There is no statutory provision for restoration of a criminal revision application dismissed for default. The power to restore such a case must thereforee, be an inherent power, which is saved by the provisions of Section 561-A. Section 369 does not apply to an order passed by the High Court in the exercise of its revisional jurisdiction.
7. No controversy arises permitting any confusion in the present case. It was not a criminal revision which was disposed of by the order dated the 17th of March, 1971. That itself was a petition Under Section 561-A. of the Code. The petition with which I am dealing at present is likewise a petition Under Section 561-A.
8. The third case relied upon by Mr. Sistani is Public Prosecutor. Andhra Pradesh v. Devireddi Nagi Reddi A.I.R. 1962 AP 479 . The learned Judges noticed the position of law as it stood earlier to the decision made by the Supreme Court in Talab Haji Hussain v. Madhukar Purshottam Mondkar : 1958CriLJ701 , and then quoted the observations made by the Supreme Court in that case in paragraph 31 of their judgment. The observations so made by the Supreme Court, while considering Section 561-A of the Code, deserve to be noticed here:-
It is obvious that this inherent power can be exercised only for either of the three purposes specifically mentioned in the section. This inherent power naturally cannot be invoked in respect of any matter covered by specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the matter in question is not covered by any specific provisions of the Code that Section 561-A can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said section . It is only when the High Court is satisfied either that an order passed under the Code, would be rendered ineffective or that the process of any Court would be abused or that the ends of justice would not be secured that the High Court can and must exercise its inherent powers Under Section 561-A.
9. It is clear that in a given case where the High Court is persuaded that the situation involved breach of the principles of natural justice or is otherwise satisfied that to secure the ends of justice it would be appropriate to give a hearing, the High Court may give a hearing to eliminate the grievance.
10. To be more explicit, the opportunity given for a hearing would not per se amount to the altering of the judgment, which may have already been passed. If the question of altering the judgment arises after giving the hearing the situation will then be dealt with in that context.
11. In this case a complaint was filed against six persons. Two of them had moved Criminal Miscellaneous (Main) No. 136 of 1970. That petition was accepted by the order dated the 17th of March, 1971. In order to satisfy my judicial conscience I have given an opportunity to Mr. R, C. Chopra to address me on the merits. The learned Counsel has taken me through paragraphs 3 to 6 of the complaint. He has also referred to other parts of the complaint and has drawn my attention to the allegations contained in para 10 thereof. Paragraph 3 of the complaint is to the effect that a hire purchase agreement was executed between the complainants and accused Nos. 1 and 2, who were carrying on the manufacturing work in partnership as a small scale unit under the name and style of Messrs. Ideal Heat Treatment Electrical Furnace Company at 8/34, Najafgarh Road, Industrial Area, Kirti Nagar, New Delhi. In paragraph 5 it was alleged that accused No. 3 Shri T. C. Gandhi, who was a financier to accused Nos. 1 and 2 was acting as an agent for and on behalf of the hirers accused Nos. 1 and 2 and was in that capacity dealing with the complainants.
12. There is no allegation anywhere in the complaint that there was any privity of contract between Shri T, C. Gandhi and the complainants. In paragraph 6 it is stated that it was accused No. 3 who gave sub-lease of the machinery to accused Nos. 4 to 6. There was no authority in accused No. 3 and as such he could not competently create any sub-lease. I have already observed in the order dated the 17th of March, 1971, that: an illusory abetment cannot be utilised in order to bind in a group of some accused persons for purposes of a criminal trial. It need not be emphasised that the order dated the 17th of March, 1971, is confined to the complaint dated the 11th of May, 1970.
13. The learned Counsel has read out Section 405 of the Indian Penal Code:-
405. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits 'criminal breach of trust'.
The ingredients of the foregoing provision must be established in order to bring home the guilt to any person who may be accused of an offence either Under Section 406 or 409 of the Code.
14. The learned Counsel has referred to clause (Thirdly) of Section 107 of the Indian Penal Code:-
107. A person abets the doing of a thing, who-
First. Instigates any person to do that thing or
Secondly. Engages with one or more other person or persons in any. conspiracy for the doing of that thing if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing or
Thirdly. Intentionally aids, by any act or illegal omission, the doing of that thing.
15. I do not find anything in the complaint, which may be said to be constituting a specific averment within the meaning of clause (Thirdly). In order to substantiate the submission Mr. Chopra has firstly cited Mavuthalayan v. Emperor : AIR1934Mad721 . The observation relied upon is:-
A person who knowingly aids in the disposal of stolen property falls under the third definition Under Section 187 and is an accomplice.
An 'accused' and an 'accomplice' fall in different categories in the eye of law. Before a person can be punished, he must be held to have committed an offence. For that purpose he would be accused before the court that he has committed a particular offence. That offence will have to be proved against him in the course of the trial. An 'accomplice' may not be an 'accused' person. To secure the conviction of an abettor particular acts like 'knowingly aiding in the disposal of stolen property', will have to be firstly alleged and then proved.
16. The case really in point, on which reliance has been placed by Mr. Chopra, is Indu Bhushan Ghosh v. The State : AIR1950All639 . After going through the facts of that case it becomes visible that both Mr. Ghosh and Mr. Ram Sewak, mentioned in paragraph 12 of the judgment stood in a particular relationship. They were to perform different actions. The measurements taken at the spot as noticed in paragraph 4 of the judgment disclosed that erroneous entries had been made in the measurement books and the pits mentioned therein, did not exist at all. Both the appellants before the High Court had performed certain actions in order to complete the crime. It was not a case of mere abetment. Looking at the judgment in detail I am confirmed in my view that in case of an allegation that a person is liable to be punished because of his haying abetted the commission of the crime, specific allegations ought to be made against him and proved in the course of the trial to bring home the guilt to the accused regarding the manner in which he may have abetted the commission of the crime. What is observed by the Allahabad High Court in the case referred to above is:
As to the contention of Ram Sewak's learned Counsel that he merely signed the bills because they had already been signed by Ghosh and Sanyal, it does not excuse Ram Sewak at all. If a person joins another in the commission of a crime by which he is to benefit and which it would not be possible to commit but for his aid, he is guilty of the commission of the crime.
(Emphasis added).
Unless it is shown that the commission of the crime was not possible without the specific aid rendered by the person he would not be liable for being convicted in terms of the foregoing observation. In this case it was open to Mr, T. C. Gandhi, accused No. 3, to give an imaginary sub lease to anyone. Accused Nos. 4 and 5, whose case was dealt with while disposing of Criminal Miscellaneous (Main) No. 136 of 1970, were necessarily not the only persons to whom a void sub-lease could have been granted. It passes comprehension how accused No. 3, could grant any consequential sub-lease to any person. After giving a detailed hearing to Mr. R.C. Chopra in every aspect of the case, I am confirmed that the order passed on the 17th of March, 1971, should stand. That order is limited to its own scope. The Criminal Miscellaneous Application No. 264 of 1971 is dismissed. Any other petition otherwise pending will not be prejudiced by this order. The complainant will be at liberty to continue proceedings against accused Nos. 1, 2, 3 and 6.