Authored By : William Comer Petheram, Mitter, Arthur Wilson,Macpherson, John Peter Grant

William Comer Petheram, C.J.

1. I quite agree with the remark of Mr. Evans that this is amatter of very grave importance, and it was because I thought that it was amatter of very grave importance and not because I bad any doubt about the law,that I constituted this Bench for the purpose of hearing it argued, and I wasall the more led to do so by the fact that I was told that a Division Bench ofthis Court had expressed a doubt as to whether there was not a power inherent inthe Court itself to review a judgment of a Division Bench in a criminal case;and when I say, to review a judgment of a Division Bench, I mean, to review ajudgment of a Division Bench by itself, because, in my opinion, every DivisionBench constitutes a Court in itself for the purpose of its judgment, and everyjudgment of a Division Bench is a judgment of the Court; and speaking formyself, and (as to this I wish to guard myself, from expressing any opinion butmy own) I do not think any difference exists between one Bench, and another sothat it must be constituted of the same Judges to review a judgment of theCourt, supposing it to be a judgment which is subject to review.

2. Speaking for myself, and, indeed, in this matter. I thinkfor the whole of the Judges constituting this Bench, I have no doubt whateverthat, in cases of this kind, no power of review resides in the Court or in anyBench of the Court. This is an opinion which I have expressed before in theHigh Court at Allahabad Queen-Empress v. Durga Charn 7 A. 672. and it is anopinion which has been expressed in the High Court at Bombay Queen-Empress v.Fox 10 B. 176 and in opposition to which, so far as I know, there is noreported case to be found.

3. The question arises under various sections of the Code ofCriminal Procedure, and the first section that applies to the matter is Section306.

4. Section 306 provides that where an accused person hasbeen acquitted or convicted by a jury, the Judge shall either record judgmentof acquittal or pass sentence on him according to law.

5. So far as that section is concerned, unless there wasanother section If that qualified it, that acquittal or conviction stands, inmy opinion, exactly on the same footing as an acquittal or conviction by theverdict of a jury in England, and is final as to the guilt or innocence of theaccused, so far as Courts of Justice are concerned.

6. Then, following upon that, comes Section 307, and thatsection provides that, where the Sessions Judge disagrees with the verdict ofthe jury, he may, if he thinks fit, submit the case to the High Court with hisreasons for so disagreeing, and the High Court is then invested with this powerin dealing with the case; the High Court "may convict or acquit theaccused of any offence of which the jury could have convicted him upon thecharge framed and placed before it; and, if it convicts him, may pass suchsentence as might have been passed by the Court of Sessions."

7. So that, as it seems to me, the effect of Section 307read with Section 306 is to say that if the Judge who tries the case isdissatisfied with the verdict and the High Court, upon a consideration of thewhole case, accepts his view, they may substitute their verdict for the verdictof the jury, and upon that being done, may pass sentence upon him; hut there isnothing whatever in these two sections to place the judgment and verdict of theHigh Court, under the circumstances, in any different position from that inwhich the verdict of the jury and the judgment of the Court would have bean ifit had been accepted by the Judge and he had passed sentence accordingly ; andthe verdict, judgment and sentence, under Section 306, would, under suchcircumstances, have been final.

8. That being so, the question then arises, whether thisstate of things is varied by any of the following sections; and whether thosesections give, either a power of appealing from the Division Bench which heardthe matter to some other Bench of this Court, or give the Court itself, or theBench constituted in the same way, a power of revision.

9. The first section which is relied upon is Section 369.Section 369 states that "no Court, other than a High Court, when it hassigned its judgment, shall alter or review the same, except as provided in Section395 or to correct a clerical error."

10. In my opinion the effect of the words "other than aHigh Court" is precisely the same as if in place of them the legislaturehad at the end of the section added these words, "this section does notapply to the High Court." There is no substantive enactment in thatsection with reference to the High Court, and all it does is to reserve thepowers which existed in the High Court before, so that they are in no degreetaken away. "What the powers of the High Court were before, it isunnecessary to consider, but whatever they were, they were reserved and theywere in the same position after this section was passed as they had been inbefore ; and inasmuch as it is not shown to us that, before the passing of thissection, any power of revision existed in the High Court, that section did not,in my opinion, create any such power, and therefore it appears that thissection does not help the applicant.

11. I should say that in the judgment of Sir Barnes Peacockin this Court, which was upon the law which was in existence before, heexpressly decides that, as the law then stood, no such power to review existed;and therefore that shows clearly that no such power as that existed before, andthat, taken along with the construction which we have put upon the section,that it did not create any such power, shows clearly that no power of reviewexists in this Court, so far as that section is concerned.

12. The only other section relied upon is Section 439. Thatsection opens in this way: "In the case of any proceeding the record ofwhich has been called for by itself, or which has been reported for orders, orwhich otherwise comes to its knowledge, the High Court may," et cetera. Inmy opinion, the first four lines of that section show, beyond all possibilityof doubt, that the record which is referred to in that section is the record ofsome Court other than that of the High Court, because it is obvious that whatis meant is, the record of the case which has been called up and brought beforethe High Court, and not the record of the case which is in the High Courtitself, and which it therefore has in its possession and has no need to callfor.

13. Under these circumstances, I think that neither Section369 nor Section 439 helps the case on which the present application has beenmade, and that it must therefore fall back on the condition of things createdby Sections 306 and 307, and, as I have said before, the verdict and judgmentof a Division Bench of this Court, coupled with the sentence, are, in myopinion, absolutely final. As soon as they have been pronounced and signed bythe Judges, this Court is functus officio, and neither the Court itself nor anyBench of it, has any power to revise that decision or interfere with it in anyway.

Mitter, J.

14. I am of the same opinion. I desire only to add that thelast part of Section 439 was enacted in order to meet a case of this kind.Section 266 says : "In this chapter, except in Section 307, the expressionHigh Court means a High Court of Judicature established or to be establishedunder the 24th and 25th Victoria, Chapter 104, and includes the Chief Court ofthe Punjab, and such other Courts as the Governor-General in Council, may, bynotification in the Gazette of India, declare to be High Courts for thepurposes of this chapter."

15. The last part of this section empowers theGovernor-General in Council to extend the procedure laid down by this chapterto the trials of cases before any Court subordinate to this Court. That is thereal effect of it. It may happen that a Court subordinate to this Court maymake an entry under Section 273 ; the procedure laid down in Chapter XXIII ofthe Code having been extended to the trial of cases before that Court. The lastpart of Section 439 lays down that in that case this Court, although possessingrevisional power over the said Court in all other respects, would not have thepower of reversing or interfering with any order passed by that Court underSection 273.

16. As regards the question whether this Court asconstituted has any jurisdiction to entertain this application, I express noopinion.

Arthur Wilson, J.

17. I am entirely of the same opinion on the main question.There is only one point on which I desire to add anything. The point is notreally one of any practical importance, because the Court, as now constituted,does contain both the learned Judges whose judgment we have been asked toreview, and therefore the decision of this Court, as at present constituted,will, by reason of their presence, be a valid and efficacious decision; but Ihave myself very grave doubt whether it does not derive the whole of itsefficacy from the fact of those two Judges being present.

18. I entertain considerable doubt whether, assuming that suchan application as this is one that could be entertained in law, any DivisionBench of this Court could entertain it with respect to a judgment of anotherDivision Bench, and I think the view taken by Sir Richard Garth in the case ofAbdul Sobhan 8 C. 63 tends strongly to confirm this doubt. I only say this byway of safeguard, because, as I said before, the Bench being constituted as atpresent, the point is not really of any practical importance.

Macpherson, J.

19. I concur with the Chief Justice.

John Peter Grant, J.

20. I concur with the learned Chief Justice.

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In Re: F.W. Gibbons(04.09.1886 - CALHC)