Yesu and anr. Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
criminal - dismissal of revision - section 392 of indian penal code (ipc) - applicants convicted under section 392 of ipc - present revision filed by applicants for challenging the same and for grant of bail filed - revision admitted and bail granted - during pendency of revision, applicant no. 1 filed jail appeal - however, no revision from jail is permissible but still court admitted the same - however, said appeal dismissed on merits - now, effect of dismissal of said appeal on disposal of present revision was in dispute - held, as per established law, during pendency of earlier revision, no subsequent revision could be entertained by court, especially, when there is no provision under the cr. pc for entertaining a revision from jail - thus, order passed in jail revision was without.....orders.c. pandey, j. 1. the applicant no. 1 yesu and applicant no. 2 beeru were convicted under section 392 of the ipc and were sentenced to undergo r.i. for two years each and were required to pay a fine of rs. 500.00 each or in default they were sentenced to undergo simple imprisonment for one month each- this judgment dated 6-11-2000 in criminal appeal nos. 244 and 245/2000 was challenged by the applicants by filing the criminal revision was filed on 2-1-2001. it was listed for admission and for grant of bail on 8-1-2001. the revision was admitted and the applicants were granted bail. it appears, that applicant no. 1 yesu, had filed a jail appeal against the impugned judgment dated 6-11-2000 passed in criminal (jail) appeal nos. 244 and 245/2000. this jail appeal was received in the.....

Judgment:
ORDER

S.C. Pandey, J.

1. The applicant No. 1 Yesu and applicant No. 2 Beeru were convicted under Section 392 of the IPC and were sentenced to undergo R.I. for two years each and were required to pay a fine of Rs. 500.00 each or in default they were sentenced to undergo simple imprisonment for one month each- This judgment dated 6-11-2000 in Criminal Appeal Nos. 244 and 245/2000 was challenged by the applicants by filing the Criminal Revision was filed on 2-1-2001. It was listed for admission and for grant of bail on 8-1-2001. The revision was admitted and the applicants were granted bail. It appears, that applicant No. 1 Yesu, had filed a jail appeal against the impugned judgment dated 6-11-2000 passed in Criminal (Jail) Appeal Nos. 244 and 245/2000. This Jail Appeal was received in the office of this Court on 8-1-2001. Since the judgment appealed against was not appealable, the jail appeal did not lie. There is no provision inthe Code of Criminal Procedure for filing a Criminal Revision from jail yet the office treated the jail appeal as a criminal revision. This criminal revision was listed on 9-2-2001 for admission as Criminal Revision No. 123/2001. This Court thereupon called for the record from the Court below as per order-sheet dated 9-2-2001. The record was received and the case was fixed for admission on 11-4-2001. This Court in absence of the applicant perused the memo of criminal revision and went through the record of the case. Thereafter hearing the learned counsel for the State this Court passed an order of dismissal on merits. However, it is obvious that the procedure adopted by this Court was defective. Firstly, it was never pointed out to this Court by the counsel for State that there is no provision in the Code of Criminal Procedure to entertain a criminal revision from jail. Secondly, the Court was not reminded that it would be proper to hear the applicant before passing an adverse order against him in Criminal Revision No. 123/2001. Thirdly, the Office did not connect Criminal Revision No. 123/2001 with this Criminal Revision No. 21/2001 which was admitted by this Court on 8-1-2001. It is apparent that the revision of the applicant No. 1 Yesu was already admitted. It is obvious that if the Court was aware of the order passed in this revision then no order of dismissal could be passed in Criminal Revision No. 123/2001.

2. This Criminal Revision No. 21/2001 is still pending and therefore this Court is required to decide the effect of dismissal of Criminal Revision No. 123/2001. For the purpose a office Note dated 27-6-200) has been prepared.

3. One view this Court can take is that so far as the applicant No. 1 Yesu is concerned, there could be no review of the order dated 11-4-2001 in criminal revision as review is barred under Section 362 of the Cr.PC and consequently dismiss this criminal revision partially filed by the applicant No. 1 Yesu alone. The other view could be that once Criminal Revision No. 21/2001 was admitted, and it is alive and existing, and so this Court had no power to pass an order in Criminal Revision No. 123/2001 separately, especially, when there is no provision under the Code of Criminal Procedure for entertaining a revision from jail. Under these circumstances, the Court can declare that every part of the order dated 11-4-2001 passed in Criminal Revision No. 123/2001 is without jurisdiction and a nullity, and as such it is of no legal consequence. However, the question is whether this Court can declare its own order as nullity under its inherent powers under Section 482 of the Code of Criminal Procedure.

4. Section 401(1) of the Code of Criminal Procedure legislates powers exercisable by Revisional Court by referring to sections mentioning the powers exercisable by the Appellate Court in appeal. The powers conferred on the Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 or Section 392 have been mentioned but there is no mention of Sections 383, 384 in that sub-section. Obviously, the legislature did not permit filing of revision from jail. Therefore a criminal revision from jail was not entertainable in eye of law. Further that the second revision would not lie whenearlier revision has already been filed and admitted. Thirdly, this Court was not alive to the situation that it had admitted this criminal revision against the impugned judgment and the applicant Yesu is party to that revision. In view of this matter, this Court in exercise of its inherent power can say that the order dated 11-4-2001 passed in Cr.R. No. 123/2001 is a nullity.

5. It is true that there is no power to review a judgment already delivered but the language of Section 362 of the Cr.PC is subject to certain exceptions. It begins with the phrase 'Save as otherwise provided by the Code or by any other law for the time being in force.....' It is apparent that anexception to Section 362 could be found in the Code of Criminal Procedure itself. It is clear that under Section 482, Cr.PC too there can be no blanket powers to review a judgment; but by that Section, the inherent powers of the High Courts are served which are necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In the opinion of this Court it can rightly be held that Section 482 of the Cr.PC empowers this Court to declare something which is nullity. Such power is exercised as an exception to Section 362 of the Code of Criminal Procedure and is limited to cases totally beyond the jurisdiction of the Court. It is well established that any order or judgment which is nullity and or without jurisdiction can be challenged in any proceeding. Section 362 of the Code of Criminal Procedure can be construed harmoniously with Section 482 thereof by saying that power to review its own order is barred by it, but the power to declare its own order as nullity is not. This Court is of the view that power mentioned above can be exercised under Section 482 of the Code of Criminal Procedure because it is inherent in the High Court to secure the ends of justice or to prevent abuse in the process of the Court. It would be travesty of justice to say that Court is powerless to declare an order as nullity on the supposed grand that it amounts to reviewing its own order. In this case, the mistake of the office in not pointing that the earlier revision was already admitted by this Court, shall be deemed to be mistake of the Court and, it is well established, that an act of the Court shall not harm any party. This Court would not interpret Section 482 of the Code of Criminal Procedure in a narrow and wooden manner so as to make it impotent to correct its own error by counter-manding an order which in law would be nothing more than a piece of paper. Thus this Court treats Section 482 of the Code of Criminal Procedure providing an exception to Section 362 of that Code in a limited circumstance like this.

6. It is also to be noted that Legislature has provided remedy of the applicant in case in a jail appeal was dismissed summarily by enacting sub-section 4 of Section 384 of Cr.PC. For meeting a similar circumstance it has been provided that a pending appeal under Section 382 of the Code of Criminal Procedure could be heard by the Court if was not considered alongwith dismissed jail appeal. On the analogy of this sub-section, it can be held that dismissal of the Cr.R. No. 123/2001 is of no consequence and this Court is entitled to hear Criminal Revision No. 21/2001. It is therefore, held that Cr.R.No. 12/2001 shall be heard without reference to the order of dismissal dated 11-4-2001 in Criminal Revision No. 123/2001. The applicant Yesu is present in person. His presence may be marked. Now he is directed to appear in the Court on 10-12-2001.

7. The matter be listed for hearing on 10-12-2001.