P L D 1961 Dacca 523 (PLP)

The applicant Babulal Agarwala was tried by a Special Judge, Khu1na under section 23 of the Foreign Exchange Regulation Act, 1947, on a charge of having contravened the provisions of sec tions 4(3) and 22 of the said Act. The learned Special Judge con victed Babulal Agarwala along with another. co‑accused, under the said sections, and sentenced each of them to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 15,000 in default, to suffer rigorous imprisonment for three months more.

2. Against the conviction of the applicant and the sentence passed on him, an appeal was preferred to this Court, which was marked as Criminal Appeal No. 165 .of 1959. The application for admission of appeal was set down for hearing by this Court, on the 7th of April 1959 when it was pointed out that the appellant had not surrendered, and that he had not submitted himself to the jurisdiction of the Court. This Court thereupon passed the following order :‑ " . . . The appellant was on bail during the pendency of the trial. But he absented himself from Court when the judgment, resulting in his conviction as aforesaid was delivered. He has not yet surrendered in obedience to the sentence imposed on him. Learned counsel appearing for appellant has asked for two weeks' time to enable the appellant to surrender himself. In this circumstance, this application for admission of appeal is adjourned for two weeks. If the appellant does not surrender as stated above, this application will stand rejected, unless further time is granted by this Court." On the 29nd of April 1959, the said application for admission of appeal again came upforhearing by this Court. It was again brought to the notice of this Court that the appellant Babulal Agarwala had not till then surrendered to serve out the sentence imposed on him. Mr. Akhtaruddin Ahmed, learned counsel for the appellant, asked for further time to enable his client to surrender and to submit to the jurisdiction of the Court. This prayer was rejected, and the following order was passed :‑ "When this application was heard by me on 7th April 1959 it was brought to my notice that the appellant did not appear in Court at the time when the judgment in the trial Court was pronounced, and that he has not surrendered to serve the sentence passed on him. On prayer of learned counsel, I adjoured this case for two weeks to enable the appellant to surrender himself. During the hearing of this application today, was informed that the appellant has not yet surrendered. Learned counsel for the appellant has asked for further adjourn ment of this application till 4th May 1959. I reject this prayer. As the appellant has not yet surrendered, I summarily dismiss this appeal." I

3. The present application is under section 56I‑A of the Code of Criminal Procedure for the restoration of the application for admission of appeal (Criminal Appeal No. 165 of 1959 to file) after setting aside the order that was passed by this Court on the 22nd of April 1959. In this application Babulal Agarwala has stated that having gone to Calcutta for medical treatment, he was preven ted from surrendering in order to serve the sentence that was im posed upon him, because, he had lost his Passport and necessary travel documents ; and that he had applied for the issue of a fresh Passport to him ; but as he could not obtain the same in time, he was unable to obey the directions given by this Court. He has appended along with the application two Medical Certificates, and has set out the circumstances under which he has obtained a fresh Passport to enable him to come to Pakistan and surrender in order to serve the sentence imposed upon him. I am satisfied with the bona fide of this application. It appears that the applicant was prevented by certain unforeseen circumstances from surrendering to the sentence imposed on him. He was without a travel document, and he could not have possibly come to Pakistan unless a fresh Passport was issued to him. I am, therefore, on the merits of this application, disposed to allow it. The question, however, is, whether this Court has the jurisdiction to pass the order which has been prayed for. I, therefore, issued a Rule calling upon the District Magistrate of Khulna to show cause why the said prayer should not be granted. I also caused a copy of the rule to be served on the Legal Remembrancer, Government of East Pakistan.

4. At the hearing of this application, Mr. Hamidul Huq Chowdhury appeared for the appellant, and Mr. M. Fazlul Huq appeared for the opposite‑party. I also allowed Mr. Maksumul Hakim, counsel for the State Bank of Pakistan to address me amicus, curiae. On behalf of the petitioner it was urged that this Court has the power to review the order passed by it on the 22nd of April 1959.

5. Mr. Hamidul Huq Chowdhury has submitted that the aforesaid order amounts to a refusal to hear the application of the petitioner for admission of the appeal preferred by him, on the ground that he has not submitted to the jurisdiction of the Court by surrendering in accordance with the sentence imposed on him. Learned Advocate has argued that the application of the petitioner for admission of his appeal was not heard by this Court for the aforesaid reason, and that the order passed by this Court could not be taken as a summary dismissal of the appeal under section 421 of the Code of Criminal Procedure. This contention must be accepted. I had myself passed the aforesaid order, and I refused to hear learned counsel on the merits of the application. I rejected it outright, because, according to the uniform practice of this Court an appellant is not heard unless he surrenders for the purpose of serving the sentence passed on him.

6. Maksumul Hakim placed before me two decisions of the Calcutta High Court, namely, In the matter of the petition of F. W. Gibbons (I L R 14 Cal. 42) and Rajjab Ali v. Emperor (I L R 46 Cal. 60).

7. In the former case (I L R 14 CaL 42) what happened was that the petitioner prayed to the High Court for a revision of the judgment that had been passed by a Division Bench of the said Court. The petitioner was tried by the Sessions Judge of the Assam Valley District with a Jury. He unanimously gave a verdict of acquittal in favour of the petitioner. The learned Sessions Judge did not agree with the said verdict, and referred the case to High Court under the provisions of section 307 of the Code of Criminal Procedure. The said Reference was heard and disposed of by a Division Bench of the said Court, and the verdict of acquittal by the Jury was reversed. The petitioner, was convicted and sentenced to suffer one year's rigorous imprisonment, and also to pay a fine of Rs: 1,000, in default, to suffer six months further imprisonment. Subsequently on behalf of the petitioner an application was made to the Chief Justice to appoint a Bench to hear an application for reviewing the aforesaid order passed by the said Court. The question for determination was whether the verdict and judgment of a Division Bench of the High Court, coupled with the sentence in a criminal case, are final, and whether as soon as they have been pronounced and signed by the Judges the High Court is functus officio ; further more whether the High Court is competent to review and revise the aforesaid judgment. It was held by the Fill Bench that there was no such power of review or revision by the High Court of its own order made in the circumstances set out above. Petheram C. J. in the judgment pronounced by him, has made the following observations:‑ "Speaking for myself, and, indeed, in this matter I think for the whole of the Judges constituting this Bench, I have no doubt, whatever that, in cases of this kind no power of review resides in the Court or in any Bench of the Court. This is an opinion which I have expressed before in the High. Court at Allahabad (Queer Empress v. Durga Charan I L R 7 All. 672) and it is an opinion which has been expressed in the High Court at Bombay Queen Empress v. Fox I L R 10 Bom. 176) and in opposition to which, so far as I know, there is no reported case to be found." The aforesaid Full Bench case was considered by a Division Bench of the same Court in the case of Rajjab Ali v: Emperor. The Division Bench held that the High Court has no power to review an order passed in its Criminal Appellate Jurisdiction rejecting summarily an appeal on its merits, and that where a case is dispos ed of merely for default of appearance, or where an order is passed to the prejudice of the accused, and by mistake or inadvertence no opportunity was given him to be heard, the High Court may review the same. The following portion of the judgment that was deliver ed by the Division Bench may be quoted :‑ "The matter has now been argued before us, and the learned Vakil for the petitioner has drawn our attention to the following cases decided by this Court after the Full Bench decision Bibhuti Mohan Roy v. Dasi Moni Dasi 7 C W N 7 note portion

10. C L J 80 and In the matter of An Attorney I L R 41 Cal. 734. "We think the present case is not distinguishable from the case decided by the Full Bench, and is distinguishable from these other cases. In the first of these cases the order had not been issued nor had it been sealed with the Seal of the Court, and the Rule was discharged for default as the learned Vakil enaged in support of the Rule could not appear when the case was called on for hearing and there was no consideration of the mertts of the case. The second case was of the same nature i.e., the case was disposed of for default of appearance only, without any decision on the merits. The last case does not seem to us to throw any light on the question under our consideration. The result of the decisions of this Court subsequent to the Full Bench case seems to be this ; that where a case is disposed of merely for default of appearance or 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 is not one to which the ruling in the Full Bench case applies." I need not discuss the aforesaid cases any further inasmuch as it is obvious that they have no manner of application to the facts of the present case.

8. On the other hand, the following cases, which will throw a considerable light on the point under consideration, may be usefully cited. In the case of Bibhuti Mohan Roy v. Dasi Moni Dasi a Division Bench of the Calcutta High Court held that in India a Court cannot review or alter its own judgment in a criminal case, but it has jurisdiction to hear and determine a criminal case which has not been heard and determined on the merits. There fore, where the Court discharged a Rule because no one appeared in support of it, it was held that it had powar to re‑open it. In the aforesaid case a Rule was issued calling upon the District Magistrate to show cause why the conviction and sentence passed on the petitioner should not be set aside. The said Rule came to be heard on the 3rd of November, and on that day the following order was passed by a Division Bench of the Calcutta High Court :‑ "Nobody appearing to support this Rule, it is discharged." On the 7th of November, an application was made to the same Bench asking that the case might be restored to the list and heard and determined upon its merits. The case was restored to the list and it came on for hearing. A preliminary objection was taken by the opposite‑party to the effect that the Court had no jurisdiction to deal with the Rule, because it had already been discharged by a Division Bench of the Court. The decision of a Full Bench of that Court, In the matter of F. W. Gibbons was cited. In the judgment that was delivered, the following observations may be quoted :‑ "But the substantial question is, whether we have the juris diction to re‑open the Rule, the order of discharge having been made merely in default of appearance. We have referred to the cases decided on this point both in this country and in England. There is abundant authority for the proposition that the Court in India cannot review or alter its own judgment in a criminal case ; see In Re : Gibbons and the Queen Empress v. Fox. We are, however, unable to find in this country any authority for the proposition that there is no jurisdiction to hear and determine a criminal case which has not been heard and deter mined on the merits. The two cases to which we have referred, were heard and determined, and the Court had given a judg ment in each. On this ground these cases are distinguishable from the present case, which has not been heard and determined, and in which no judgment has been given. The English cases dealing with the practice as regards Rules and Motions, are to the effect that the Court will not re‑open a Rule when it has been disposed of after hearing. See Phillips v. Weyman 2 Chitty 265, but notwithstanding that Rule there is one case at least in which a Rule discharged under a misapprehension of fact was allowed to be re‑opened on a fresh Motion ; see Cooper v. Jogger 1 Chitty

445. These and the two cases to which we have last referred, lead us to the view that the proposition that there is no inherent power of the Court to re‑open a Rule, which has not been disposed of on a consideration of the grounds of the Rule, cannot be sustained, and we have been able to find no case decided either in this country or in England which lays down the proposition that the Court is precluded from hearing, determining and giving a judgment in a case merely because it has made an order disposing, of it in default of appearance. The language of the English cases is inconsistent with such proposition. The case of Walker v. Budden 5 Q B D 627 appears to recognize the power of the Court to re‑hear a case which has been determined even in the absence of only one of the parties. In the present case there has been no judg ment. The Court has not considered the grounds on which the Rule was granted. It has not come to the conclusion whether all or any of those grounds fail. It was open to the Court under the provisions of section 440 of the Code of Criminal Procedure to determine the questions raised by the Rule without hearing counsel or pleader for or against the Rule. This, the learned Judges did not do, for, it appears on the face of their order that the order was made only because no one appeared. Under these circumstances we think the Court had the power to order the case to be restored to the list and heard. We hold, therefore, that we have jurisdiction to hear, to determine and to give a judgment in this case. We do not re‑hear it because it has never been heard nor do we review the judgment because no judgment has ever been given." I agree with the aforesaid observations as they apply, mutatis mutandis, to the facts of the present case before me.

9. In the case of Ibrahim and another v. Emperor (A I R 1928 Rang. 288) the Rangoon High Court has held that an order of dismissal for default of appearance, is not a judgment, and the High Court has power to review such a dismissal order passed in its appellate jurisdic tion. The following observations have been made by the Court in the judgment that was delivered "However, I am of opinion that what has been stated above is only applicable to a `judgment'. The term `judgment' is not defined in the Code. In my view the `judgment' contemplated by section 369 is only a decision on the merits. Trevelyan, J., in Damu Sena Pati v. Sreedhar Rajwar I L R 21 Cal. 121 put it in another form. According to him a `judgment' means the expression of as opinion of the Judge or Magistrate arrived at after due consideration of the evidence and of the arguments. So, I hold that a dismissal for default of appearance is not a judgment. It, therefore, follows that this Court has power to review a dismissal order for default of appearance. Such view was entertained by a Bench of the Calcutta High Court in Rajjab Ali v. Emperor where it was held that where a case is disposed of merely for default of appearance or an order is passed to the prejudice, of the accused and by mistake or in advertence no opportunity was given him to be heard, the High Court may review the same." In the case of Emperor v. Bangsgopal (I L R 56 All. 299), the Allahabad High Court has held that "an order `dismissing' an appeal on the ground that a copy of the judgment has not been filed as required by sec tion 419 of the Criminal Procedure Code is more correctly describ ed as rejection of the appeal on the ground of format' defects, and not as a dismissal on the merits. Such an order does not amount to a judgment within the meaning of sections 167 and 369, and can suhsequently be altered or reviewed." Bennet J., in delivering‑the judgment of the Court, has made the following observations :‑ "The order of the 16th of June 1933 does not come under section 421 of the Criminal Procedure Code as an order', passed by the appellate Court on perusing a petition of appeal and the copy of the judgment, and considering that there is no sufficient ground for interference, because; no copy of the judgment was before the Court. There are no definite rules laid down in regard to the action to be taken by the appellate Court where the petition of appeal does not comply with section 419 of the Criminal Procedure Code, i.e., where there is no copy of the judgment attached to the appeal. But, it appears to me that it is open to the appellate Court to take action where the copy is not supplied. The question is, what is the nature of that action. I consider that the action taken in the present case may be correctly described as rejection of the appeal and not as dis missal. The appeal is rejected, because it did not comply with the provisions of section

419. A similar order would have been passed for' the rejection of the appeal if the appeal had been filed beyond the period of limitation. In both cases I consider that the order rejecting the appeal cannot be held to be an order amounting to a judgment within the meaning of section

369. Under that section it is laid down in various rulings that the section applied to judgments and not to orders of rejection on the ground of formal defects. It has been so decided in Ibrahim v. Emperor that where a Criminal Court dismisses an appeal for the default of appearance,,it is not a judgment and that the judg ment contemplated by section 369 is a decision on the merits."

10. In the case of Kishan Singh v. Girdhari Lal and an other (AIR 1924 Lah. 310), Abdul Qadir, J. has observed as follows :‑ "A preliminary objection was raised by Mr. Balwant Rai to the effect that the petition having been once dismissed in default, the petitioner had got it restored but it was doubtful whether this Court could restore a criminal petition, once so dismissed or could review an order passed by itself as a Court of Criminal Jurisdiction: As the petition was never decided on the merits, I do not see any force in this objection, and Mr. Sethi refers to Bibhuti Mohan Ray v. Dasi Moni Dasi as an authority on the point that a petition dismissed in default without any decision on the merits can be re‑heard.''

11. In the case of State v. Kalu (53 Cr. L J 887 (F B)); a Full Bench of the Madhya Bharat High Court has held that "when an order under section 421 of the Code of Criminal Procedure, to the prejudice of an accused, is made without affording him an opportunity of being heard (as for instance where a case was posted on a day anterior to that fixed in the notice to the accused), the High Court can vacate its sum mary order passed under section 421 for rehearing the case, though it will not amount to reviewing a previous judgment". I have quoted the aforesaid case inasmuch as it has discussed a large number of decisions in the judgment that was pronounced by the Full Bench.

12. In the case of Tadi Soma Naidu and another (I L R 47 Mad. 428), a Division Bench of the Madras High Court has held that the judg ment of the High Court in a criminal matter is final as soon as it is signed, and that thereafter the Court is functus officio, and has no power to revise or alter its decision. It has further been held in that case that "an order to the prejudice of an accused without affording him an opportunity of being heard as, for instance, where by mistake a case was posted on a day anterior to that fixed in the notice to the accused, and the sentence was enhanced in his absence, is null and void ab initio, as being one passed without jurisdiction."

13. It would appear from the decisions cited above that the Courts of India and Pakistan have consistently held that when an order of dismissal is passed without considering the merits of the appeal, the appeal may be subsequently heard by the same Court. In the present case, it will be noticed that the order that was passed by this Court was not an order passed under section 421 of the Criminal Procedure Code. Section 421 reads as follows :‑ "(1) On receiving the petition and copy under section 419 or section 420, the appellate Court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily Provided that no appeal presented under section 419 shall be dismissed unless the appellant or his Pleader has had a reason able opportunity of being heard in support of the same. (2) Before dismissing an appeal under‑this section, the Court may call for the record of the case, but shall not be bound to do so." It will thus appear that in summarily dismissing appeal under section 421 of the Code of Criminal Procedure, the Court has to peruse the memorandum of appeal and the copy of the judgment furnished under section 419 or section 420 of the, said Code. In the present case the order that was passed by this Court, was made in accordance with the long established practice of this Court as well as of its predecessor, to the effect, that this Court will refuse to entertain or hear an appeal 'when the appellant has not surren dered in accordance with the sentence passed on him. The order rejecting the application for admission of appeal tantamounts to a refusal to entertain or hear the appeal. It is not an order made under the provisions, of the Code of Criminal Procedure, and such an order is certainly not a `judgment' within the meaning of sections 367 .and 369 of the said Code. In the present case, the appellate was not heard by this Court inasmuch as he had noti surrendered in obedience to the sentence that was imposed upon him. There was no consideration of the petition of appeal filed by the appellant or of the judgment pronounced by the trial Court. The petitioner was refused a hearing, and this Court refrained from entertaining the appeal on the aforesaid ground. Therefore, although in the order that was passed by this Court the expression `summarily dismissed' has been used, the order really tantamounts to a rejection of the petition of appeal, because the appellant did not surrender in order to serve the sentence passed on him by the Court from whose order the appeal has been preferred. In the present application the applicant has made out a case which would show that he was prevented by unforeseen circumstances from obey ing the order of the trial Court. I am, therefore, satisfied with the statements made in the present application, although Mr. Hakim has contended that the averments in the petition should not be

14. I find no authority for the proposition that this Court has no jurisdiction to hear and determine an application or admission of an appeal which was not disposed of on its merits, but was rejected outright on the sole ground that the appellant had not surrendered in compliance with the sentence that was passed on him. No judgment, within the meaning of section 369 of the Criminal Procedure Code, was pronounced by this Court when it rejected the petition in the circumstances stated above: I am of opinion that this Court has power to order this case to be restored to list and to be heard. It is within the jurisdiction of this Court to hear this case and to pronounce a judgment thereupon. This will not amount to a re‑hearing of the case as it has never been C heard before, nor will it amount to reviewing a previous judgment as no "judgment" has been pronounced. The order that I now propose to make will amount to an order directing that the application of the petitioner for admission of his appeal, which was never heard before, will now be heard on the grounds that have been stated in the said petition of appeal. I, therefore, make the Rule absolute, and order that Criminal Appeal No. 165 of 1959 of Babulal Agarwala be restored to file as an "applica tion for admission of appeal". The order passed by this Court on the 22nd of April 1959 is, consequently vacated.

15. Pending the hearing of the application for admission of appeal, let the petitioner continue on the same bail as before. K. B. A. Rule made absolute.