Raj Kishore Prasad, J.

(1) This application under Section 561A, Criminal P. C., for restoration of Cri. Revu. No. 198 of 1956, which stood dismissed for default on 17-2-1956, by virtue of this Courts order dated 10-211956, arises in the following circumstances:

(2) The petitioners filed a criminal revision application in this Court, challenging their convictions and the sentences passed upon them, on 10-2-1956, without a copy of the judgment of the trial Court. On the 10th February, one weeks peremptory time was allowed for filing a certified copy of the trial Courts Judgment, failing which the revision application was to stand dismissed without any further reference to a Bench. The trial Courts judgment not having been filed within the peremptory time allowed by this Court, the criminal revision application filed by the petitioners stood dismissed for default on 17-2-1956, by virtue of the above. On 20-2-1956, that is, four days after the expiry of the peremptory date for filing the trial Courts Judgment the petitioners filed the present application for restoration of the criminal revision, and, for condoning the delay in filing the trial Courts judgment, which was filed along with this application, and for accepting it. This matter came up before us on 27-2-1956, when we admitted the application, issued a rule in the case, and directed it to be registered separately as a Criminal Miscellaneous case. The rule has now come for hearing and final disposal before us.

(3) Mr. Ashwini Kumar Sinha in support of the rule has contended that as the criminal revision application was dismissed for default, this Court has got the power to restore the case, because such an order of dismissal for default is not a judgment, to which Section 369, Criminal P. C. is attracted. In support of his contention, he has relied on a number of authorities of different High Courts including some unreported decisions of this Court. The cases relied upon are : Cri Revn. No. 531 of 1941 Bishundhari Gope v. Emperor, decided by Agarwala J., on 31-7-1941 reported in 1941 Pat WN 622 (A); Cri. Misc. No. 336 of 1944, Lalla Ram V. Emperor decided by Reuben J., on 4-9-1944 (B); Cri. Revn. No. 427 of 1945, Ganpat Kaiyar v. Emperor, decided by Das J., on 27-11-1945 (C), relying on the decision of Reuben J., in Cri. Misc. No. 336 of 1944 (B), just mentioned; Cri. Revn. No. 36 of 1951 Moti Tanti v. The State decided by Reuben J., on 8-11-1951 (D); Bibuty Mohan Roy v. Dasimoni Dasi, 3 Ind Cas 393 [LQ/CalHC/1902/137] : 10 Cal LJ 80 (E); Kunhahamad Haji v. Emperor, AIR 1923 Mad 426: ILR 46 Mad 382 (F); Ibrahim v. Emperor, AIR 1928 Rang 288 (G); Kishen Singh v, Girdhari Lal, AIR 1924 Lah 310 (H) and Rajab Ali v. Emperor, ILR 46 Cal 60 [LQ/CalHC/1918/213] : (AIR 1919 Cal 409) (I). The ratio decidendi of these cases is that Section 369 of the Code is no bar to the restoration of criminal revision application dismissed for default, because such an order of dismissal for default is not a judgment within the meaning of Section 369 of the Code. Mr. Sinha has also referred us to the recent decision of the Supreme Court in U. J. S. Chopra v. State of Bombay, (1955) 2 SCR 94 [LQ/SC/1955/32] : ((S) (AIR 1955 SC 633 [LQ/SC/1955/32] ) (J).

(4) Mr. Shyamnandan Prasad Singh, the learned Standing Counsel, appearing for the State, has, however, placed reliance on B. Ranga Row v. Emperor, 13 Cri LJ 710 : 16 Ind Cas 518 [LQ/MadHC/1912/425] (Mad) (K) and In re Somu Naidu. ILR 47 Mad 428 [LQ/MadHC/1923/441] : (AIR 1924 Mad 840 [LQ/MadHC/1924/216] ) (L), in which a contrary view has been taken He has also placed before us Ram Dass v. State, AIR 1952 All 928 [LQ/AllHC/1952/13] (M) and Keshav Lal v. Gaveria, AIR 1952 Raj 50 [LQ/RajHC/1951/128] (N), in which it has been held that the High Court in the exercise of its powers under S. 561A, Criminal P. C., to secure the ends of justice, can restore a criminal revision, which was dismissed for default without going into its merits.

(5) The question for our determination, there fore, is, whether this Court has the power to restore a criminal revision application, which has been dismissed for default.

(6) There is no statutory provision for such a restoration. The power to restore a case dismissed for default, if it exists, must, therefore, be an inherent power, which is saved by- the provisions of Section 561 A, Criminal P. C., This section was inserted in the Criminal Procedure Code by the Amendment Act of 1923. It is merely a saving clause which does not confer a new power on the High Court. The decisions of the High Courts prior to this amendment are, therefore, still applicable,

(7) A long line of decisions has established that as provided by Section 369, Criminal P. C., the moment a judgment is pronounced and signed, the High Court is functus officio, and neither the Court itself, nor any Bench of it, has any power to revise that decision, or interfere with it in any way (vide In re, F. W. Gibbons, ILR 14 Cal 42 [LQ/CalHC/1886/139] (FB) (O) ) Even under Section 439, Criminal P. C., the High Court has not any power to review its Judgment pronounced on revision in a criminal case (vide Queen-Empress v. C. P. Pox, ILR 10 Bom 176 (FB) (P)). The High Court, therefore, cannot review such an order, passed by itself in exercise of its revisional jurisdiction, even under Section 561A, Criminal P. C., because the High Court possessed no inherent power to review its judgment even before the amendment of 1923, when Section 561-A was introduced in the Criminal Procedure Code. Consequently, it cannot be said that Section 661A either modifies the provisions of Section 369, or clothes the Court with any fresh power so as to entitle it to alter, or review its own judgment in a criminal case, once it has been pronounced and signed, except in the case mentioned in Section 389, Criminal P. C.

(8) The Supreme Court decision in U. J. S. Chopra (J), above mentioned, has no application to the present case. In that case what happened was this: The appellant, U.J.S. Chopra, preferred an appeal to the High Court of Judicature at Bombay against his conviction and sentence under the Bombay Prohibition Act (Act 25 of 1949). His appeal was summarily dismissed by a Bench of that Court. After the dismissal of that appeal, the State of Bombay made a criminal revision application to the High Court for enhancement of the sentence. Notice having been issued to the appellant under Section 439 (2), Criminal P. C., the appellant claimed his right under Section 439 (6) of the Code to show cause against his conviction also. This the High Court did not permit him to do. The High Court, however, did not think fit to make any order for enhancement of the sentence. The High Court granted leave to the appellant to appeal to the Supreme Court under Article 134(1) (c). Constitution of India. The question for consideration before the Supreme Court was, whether the summary dismissal of the appeal preferred by the appellant precluded him from taking advantage of the provisions of Section 439(6), Criminal P. C. when he was subsequently called upon to show cause why the sentence imposed upon him should not be enhanced. If was held by the Supreme Court that the right which is conferred on the accused of showing cause against his conviction under Section 439(6), Criminal P. C. is a right which accrues to him on a notice for enhancement of sentence being served upon him, and, he is entitled to exercise the same irrespective of what has happened in the past, unless and until, there is a Judgment of the High Court already pronounced against his conviction after a full hearing. The appeal of the appellant was, accordingly, allowed, and, the order of the High Court was set aside, and, the matter sent back to the High Court with a direction to show cause against the conviction and dispose of the matter accordingly.

(9) In the present case, no notice under Section 439(2) was at all issued, because the case did not reach that stage. It was dismissed for non-compliance with a peremptory order of the Court. To such a case, the Supreme Court decision, so far as its actual decision goes, will have no application,

(10) The question, therefore, for our consideration is, does Section 369, or Section 430. Criminal P. C., bar the inherent jurisdiction of the High Court to restore a criminal revision application, which has been dismissed for default

(11) Section 369 runs thus:

"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."

Section 369 was amended by Act 18 of 1923 by which the words:

"Save as of otherwise provided by this Code, or by any other law for the time being in force, or, in the case of a High Court established by Royal Charter by the Letters Patent of such High Court no Court" for the words "No Court other than a High Court" with which the section formerly opened were substituted. Section 369, as it originally stood, did not apply to a judgment of a High Court, but the amended Section 369, quoted above, makes the Judgment or order of the High Court passed in the exercise of its original criminal jurisdiction final, subject to the other provisions of the Code, or of the Letters Patent of the High Court.

(12) In the Supreme Court case of U. S. J. Chopra (J), referred to before, his Lordship Das J., as he then was, held that: "the finality of Section 369 attaches to the judgments pronounced by all trial Courts including the High Court in the exercise of its original criminal jurisdiction, it certainly has no bearing on the question of finality of appellate judgments which is specifically provided by Section 430 of the Code. Again, the rule of finality embodied in Section 369 cannot, in terms, apply to the orders made by the High Court in exercise of its revisional jurisdiction, for Section 442 of the Code which requires the result of the revision proceedings to be certified to the Court by which the finding, sentence or order revised was recorded or passed refers to it as its decision or order, and not judgment.

(13) Section 369, therefore, does not apply to any order passed by the High Court in the exercise of its revisional jurisdiction.

(14) Section 430, Criminal P. C., runs thus: "Judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in Section 417, and Chapter 32. z

(15) It follows, therefore, that Section 430 of the Code, also does not apply to decisions, or orders made in revision by the High Court under Chapter 32.

(16) When, therefore, Sections 369 and 430 of the Code do not apply to decisions or orders made by the High Court in revision, they cannot at all bar, or affect the inherent power of the High Court, contained in Section 561A of the Code, to restore, a criminal application in revision dismissed for default, in appropriate cases.

(17) There is another reason also, as has been held in some cases, why Section 369 of the Code will not apply to an order of dismissal for default. Such an order is not at all a judgment.

(18) The Criminal Procedure Code, unlike the Civil Procedure Code, does not define Judgment A judgment means the expression of the opinion of the Court arrived at after, a due consideration of the evidence and all the arguments. The above meaning of the word Judgment, as is to be found in Full Bench decisions of the Madras High Court in Re Chinna Kaliappa Goundan, ILR 29 Mad 126 [LQ/MadHC/1905/99] (Q), of the Bombay High Court in Emperor v. Nan-dial Chunilal, 48 Bom LR 41: (AIR 1946 Bom 276 [LQ/BomHC/1945/98] ) (FB) (R), and of the Calcutta High Court in Damu Senapati v. Shridhar Rajwar, ILR 21 Cal 121 [LQ/CalHC/1893/83] (S), was approved by their Lordships Bhagwati and Imam JJ., in the Supreme Court case just mentioned. Their Lordships mentioned that the observations of the Madras High Court in its Full Bench decision, just referred to, were quoted with approval by Sulaiman J., in Dr. Hori Ram Singh v. Emperor, AIR 1939 FC 43 [LQ//1939/1] (T), in which his Lordships Sulaiman J., observed that the Criminal Procedure Code did not define a judgment, but various sections pf the Code suggested what it meant His Lordship then discussed those sections and concluded that judgment in the Code meant a judgment of conviction or acquittal.

(19) The question, therefore, for our consideration is, is the order of dismissal for default a judgment

(20) In the case of AIR 1928 Rang 238 (G), it has been held that an order of dismissal for default is not a judgment within the meaning of Section 369, Criminal P. C.

(21) In this connection the observation of Sulaiman J., in Dr. Hori Ram Singh (T), above mentioned, which was held by the Supreme Court to be sound, may be reproduced below:

"It will be seen that an order under Section 435 can with difficulty be called a judgment. All that a Judge does at this preliminary stage is either to send for the records of the lower Court with a view to examining them under Section 439 (1), or to refuse to do so. it is difficult to see how the latter can possibly be called a judgment of conviction. When such an order consists of the one word Dismissed can it necessarily be taken as a judicial pronouncement that in the opinion of the Judge the respondent was rightly convicted upon the evidence It seems to me that all that it means is that the Judge sees no adequate ground disclosed in the petition or on the face of the judgment for proceeding further."

(22) His Lordship Bhagwati J. in the Supreme court case in delivering his own judgment and that of his Lordship Imam J. observed thus:

"The order dismissing the appeal or criminal revision summarily or in limine would no doubt be a final order of the High Court not subject to review or revision even by the High Court itself but would not tantamount to a judgment replacing that of the lower Court."

(23) When, therefore, a criminal revision application has been heard on the question of its admission, and, after hearing the petitioner, or his lawyer, the High Court has dismissed it summarily, or in limine without issuing notice to the opposite party as required by Section 439 (2) Criminal P. C., its order of dismissal is not a judgment but an order. I do not understand how it can be said that an order of dismissal for default of a criminal revision application, which has not yet come up for consideration of the High Court under Section 439(1), but which has been dismissed for default, before it has reached the admission stage, for non-compliance with a certain order of the Court, can be called judgment at all.

(24) I would, therefore, hold that an order of dismissal for default, or a criminal revision application is not a judgment, but a mere order, and, therefore, on this ground also Section 369 of the Code will not bar the inherent jurisdiction of the High Court to pass an order of restoration for the ends of justice, in appropriate cases. 24a. The above question has been considered at length and fully if I may say so with respect, by Reuben J., in Lalla Ram v. Emperor (B), mentioned before. His Lordship, after a consideration of all the cases, for and against the above view, most of which have been referred to at the Bar and mentioned before, came to the conclusion that the bulk of authority appeared to be in support of the High Courts power to restore a revision petition dismissed for default. This view was accepted by Das J., as he then was, in the case of Ganpat Kaiyar v. Emperor (C), mentioned before, and his Lordship restored the criminal revision application which had been dismissed for default earlier.

(25) A Division Bench of the Calcutta High Court in Bibuty Mohun Roy v. Dasi Moni Dasi (E), referred to before, held:

"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...."

They, therefore, concluded:

"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."

The revision petition which had been dismissed for default was, therefore, restored, and heard on its merit.

(26) That this represents the correct view of the law as opined by another Bench of the Calcutta High Court in ILR 46 Cal 60 [LQ/CalHC/1918/213] : (AIR 1919 Cal 409) (I). Their Lordships summarised the decision of that Court, subsequent to the decision of the Full Bench in Re: Gibbons (O), referred to before as follows:

"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 Pull Bench case applies."

(27) In re Tadi Soma Naidu (L), referred to above, a Division Bench of the Madras High Court also has taken a similar view.

(28) I, therefore, hold that there is nothing in the Criminal Procedure Code which "in any way ties the Hands of the Court in exercising its inherent powers under Section 561A of the Code in restoring a criminal revision application dismissed for default.

(29) In this connection, Sections 440 and 439 (2) of the Code, have also to be considered, as they have also been considered in some of the cases mentioned before.

(30) Section 440, Criminal P. C. runs thus:

"No party has any right to be heard either personally, or by pleader before any Court when exercising its powers of revision: Provided that the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader, and that nothing in this section shall be deemed to affect Section 439, Sub-section (2)". Section 439, Clause (2) runs thus: "No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by a pleader in his own defence."

(31) In a criminal revision the High Court acts at its own discretion, and its order dismissing the petition for default is with jurisdiction. No petitioner has a right to be heard and the High Court is not compelled to interfere with a judgment brought to its notice, unless it so thinks fit.

(32) The Special Bench of the Lahore High Court in Emperor v. Atta Mohd. ILR (1944) 25 [] Lah 391 : (AIR 1945 Lah 130) (U) held that the exercise of revisional jurisdiction by the High Court is entirely discretionary, that an application for revision is entertained as a matter of favour, that no party is entitled to be heard either himself or by pleader when the Court is exercising its revisional jurisdiction, and that, therefore, a dismissal of an application, for revision in limine tantamounts to a refusal by the Court to exercise, its revisional jurisdiction. This view was approved by the Supreme Court in U. J. S. Chopra (J). His Lordship Bhagwati J. in this connection, observed; "In the case of an application for revision also the same may be dismissed summarily and without even hearing the party personally or by a pleader."

(33) In the case of Tadi Somu Naidu (L), a Division Bench of the Madras High Court held:

"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 of the accused and the sentence was enhanced in his absence, is null and void ab initio as being one passed without jurisdiction. The proper course in such a case is to proceed with the matter afresh after proper notice to the accused."

(34) The above observations apply only when notice has been issued under Section 439 (2). In the present case, however, the facts are different. At the request of the petitioners Advocate the petitioners were granted time to file a certified copy of the trial Courts judgment within a certain time. The petitioners having failed to comply with this order within the time given, the peremptory order passed by this Court automatically came into effect, and, the application of the petitioners was dismissed. In such circumstances, in the present case, there is no question of denying the petitioners an opportunity to be heard."

(35) In the case of Lalla Ram (B), referred to before, which was decided by Reuben J. the criminal revision was admitted but subsequently it was dismissed for default. His Lordship, there fore, observed:

"Presumably, therefore, they have an arguable case. The order dismissing their petition for default is undoubtedly an order made to their prejudice. It was passed on a day which was not a day fixed for hearing, so it cannot be said that the petitioners had an opportunity of being heard on the merits of their application. If, therefore, we regard the order of dismissal as one passed under Section 439, it would be an order without jurisdiction, and, therefore, liable to be treated as a nullity."

On this ground as well as on the ground that the High Court possessed the power to restore a revision petition dismissed for default, his Lordship restored the revision case. The above observations of his Lordship on the construction of Section 439(2), Criminal P. C. will not, however, apply to the present case, because it has not yet been admitted and no notice has yet been issued in the case under Section 439(2) Criminal P. C.

(36) For the reasons given above, I hold that this Court has got powers to restore Cri. Revn. No. 198 of 1956, which stood dismissed for default, by force of the order of this Court dated 10-2-1956, in the exercise of its inherent jurisdiction under Section 561A, Criminal P. C.

(37) The next question for our consideration is, if on the merits of the present application, we should exercise our inherent powers to restore the criminal revision application which was dismissed for default.

(38) In the affidavit, it has been mentioned by the petitioners that their lawyer on 11/2/1956, after having got one weeks peremptory time on 10/2/1956 from this Court sent a telegram to their pair-bikar informing him that only one weeks time had been granted. 12/2/1956, being Sunday, the petitioners karpardaz on 13/2/1956 filed an application for a certified copy of the trial Courts judgment without wasting any time in the least, and, the copy was ready for delivery on 18/2/1956, as 16/2/1956 and 17/2/1956, were holidays in the Court below. Immediately after taking the copy it was filed in this Court on 20/2/1956 along with the present application for restoration. In my opinion, sufficient cause has been shown for not filing the trial Courts judgment within the time given by this Court and, such, I would allow the present application for restoration, and restore the Cri. Revn No. 198 of 1956, which now will be listed for its admission. The rule is, therefore, made absolute.