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Criminal Appeal No. 311 of 1950, decided on 10th March 1952

, S. 561‑A‑Advocate ‑Unable to attend the Court on the fixed date duly notified for hearing‑Whether High Court has inherent powers to set aside the judgment and order for restoration of appeal.

In the present case an appeal was filed by the applicants through their advocate. The appeal was admitted to regular hearing and the advocate was duly notified. On the date fixed for hearing, the advocate had a nervous breakdown and was unable to attend the Court. The Court proceeded to hear the Public Prosecutor and delivered judgment on the merits of the case. On the debatable point whether the High Court has inherent power under section 561‑A, Criminal P. C. to set aside the judgment delivered and order restoration of appeal.

Held, that as the appellants' advocate had been given an opportunity of being heard, the Court had no inherent power to review its own judgment or to order the appeal to be restored merely on the ground that the Appellants' advocate is prevented, unknown to the Court, for reasons beyond his control, from being present in the Court.

Sabu and others v. The Emperor A I R 1935 Sind 84, Chandrika v. Rex A I R 1949 All. 176, Raju and others v. Emperor A I R 1928 Lah. 462, In re Tadi Soma Naidu and others 1924 I L R 47 Mad. 428 and Rajabali v. The Emperor I L R 46 Cal. 60 followed.

Galos Hirad and others v. The King A I R 1944 P C 93, Venkatakrishnaya v. The Emperor 1937 M W N 91 and Olayet Khan v. The King Emperor 1922 I L R 1 Pat. 589 referred to.

Ibadat Yar Khan for Appellants.

Inamullah, Public Prosecutor for the Crown.

---In this case an appeal was filed by the applicants through their Advocate Mr. Abdul Sattar. It was admitted to regular hearing ; notice of the dote of hearing was given, but on that day, on his way to Court, Mr. Abdul Sattar suffered a nervous breakdown. This nervous break down is stated in Mr. Abdul Sattar's affidavit and we see no reason to doubt the truth of that statement. In fact Mr. Abdul Sattar is still unwell according to Mr. Ibadat Yar Khan who has appeared on his behalf. The Bench proceeded to hear the learned Public Prosecutor, and delivered a judgment dealing with the merits of the case. It is argued by Mr. Ibadat Yar Khan that this judgment cannot be said to be on the merits, in that certain points mentioned in the Appeal Memo. were not dealt with in the judgment. But section 423 does not state that the judgment shall consider every point that is in the appeal memo; it lays upon them the duty of perusing the record, and hearing the appellant or his pleader, if he appears.

The substance of the application before us is that the judgment then delivered should be set aside, so that the appeal can be heard once more upon the merits.

The questions whether section 369 of the Criminal P. C. prohibits such an, application or whether such an application is allowable under section 561‑A are debatable point.

In Shahu and others v. Emperor (A I R 1935 Sind 84), a Full Bench of the Judicial Commissioner's Court entered into fully considered judgment. In that case, under section 421 there had been a summary dismissal of an appeal, and the Full Bench came to the conclusion that if either of the two conditions precedent in section 421 was not observed, then it was open to the Court to set aside its judgment; but if both had been complied with, a High Court had no power to interfere under sec tion 561‑A. The ratio decidendi of that case has been followed in several other cases. In Chandrika v. Rex (A I R 1949 All. 176), Seth, J., sitting alone, reviewed the decisions and came to the same conclusion that where an appeal is disposed of by the High Court before the date fixed for hearing, and the counsel has had no opportunity to be heard, the High Court has an inherent power to set aside the judgment, starting with the hearing of the appeal and terminating with the judgment. Similar cases of the Lahore High Court are to the same effect. In Raju and another v. Emperor (A I R 1928 Lah. 462), a Division Bench of the Lahore High Court held that there has never been an inherent power in the High Court to alter or review its own judgment once it has been pronounced or signed, except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on merits. Similarly in Re Tadi Soma Naidu and another (I L R 47 (1924) Mad. 428), it was held that if a case was posted on a day before that fixed in the notice to the accused, and if sentence were enhanced in his absence, the proper course in such a case would be to proceed with the matter afresh after proper notice to the accused. Lastly a Division Bench of the Calcutta High Court in Rajabali v. Emperor (46 Cal. 60), held that where an order is passed to the prejudice of an accused person, and by mistake or inadvertence no opportunity has been given to him to be heard in his defence, such an order can be set aside.

The question, therefore, in this case is whether the condi tions of section 423 were complied with by the Division Bench. This is not one of those cases where a date had been given to the Appellants but the Court proceeded to hear the case on a different date; nor is it a case like the one which the Privy Council dealt with in Galos Hirad and another v. The King (A I R 1944 P C 93), where the judge knew that the opportunity given to the advo cate was merely illusory. The only case which deals with the question whether, if an advocate is prevented unknown to the Court by reasonable cause from availing himself of the oppor tunity to be present, the Court may or should set aside its order, is one quoted in Mittra at page 1247, 1949 Edition. The case is cited as Venkatakrishnaya v. Emperor (1937 M W N 91), but is not available in this Court. It appears that the pleader came to Court at 10 a.m. not being aware of the fact that the time of hearing was 7‑30 a.m. It is not clear whether 7‑30 a.m. was the proper and ordinary time for hearing of appeals, or whether the Court had for some reason or other decided to depart from its usual time of hearing of the appeals. The only other case dealing with this point, that we have had brought to our notice, is Olayet Khan v. King Emperor (I L R 1 Pat 589). There it was held by a Division Bench that the mere fact the appellant's counsel was prevented from being present in Court in time on account of a railway strike was not sufficient ground for the High Court in revision to set aside the appellate order of the lower Court, which had entered into the merits of the appeal.

It is true, as pointed out by the Privy Council that the importance of persons accused of serious crime having the advantage of counsel to assist them before the Courts cannot be doubted by anybody. On the other hand the wording of sec tion 423, in our opinion, merely means that the pleader is to be given an opportunity of being present, and there is nothing corresponding in the provisions of the Civil P. C., allowing restoration of an appeal, where an advocate has been prevented by reasons beyond his control from being present. The mere fact that such cases are so rare in the reports indicates that the High Courts have set their faces against restoration orders where an advocate has been prevented from being present. We, therefore, dismiss the present application.

K. B. A. Application dismissed.

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