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Report No. 141

3.16. Supreme Court case of 1962.-

The Supreme Court had an occasion to consider the question whether an appellate court has the power to review or restore an appeal which is dismissed in 1962, in Sankatha Singh v. State of Uttar Pradesh, AIR 1962 SC 1208: 1962 Supp SCR 817. The facts of the case were that the appellants were convicted and sentenced under sections 323, 324 and 452 read with section 34 of the Indian Penal Code, by the Magistrate. Their appeal against conviction, before the Sessions Judge, was dismissed in default. The appeal was subsequently restored for rehearing by the Sessions Judge, on an application having been made by the appellants.

The successor of the Sessions Judge, who restored the appeal, however, was of the opinion that the appellate court had no power to review or restore an appeal. He accordingly dismissed the appeal, by holding that the order of his predecessor restoring the appeal was ultra vires and without jurisdiction. The revision petition carried to the High Court against this order was dismissed. In appeal to the Supreme Court, it was held that an appellate court has no power to review or restore an appeal which had been disposed of.

A Sessions Judge Cannot set aside his first order passed in appeal dismissing the appeal when neither the appellants nor their counsel appeared and cannot order the rehearing of the appeal. In so far as the inherent power of the court to restore a case is concerned, the Supreme Court held as under in Sankatha Singh v. State of U.P., AIR 1962 SC 1208: 1962 Supp SCR 817 hereinabove:-

Assuming that Sri Tej Pal Singh, as Sessions Judge, could exercise inherent powers, we are of the opinion that he could not pass the order of the rehearing of the appeal in the exercise of such powers when section 369, read with section 424 of the Code, specifically prohibits the altering or reviewing of its order by a court. Inherent powers cannot be exercised to do what the Code specifically prohibits the court from doing."

Although, in the above judgment, it was held than an appellate court must decide the appeal on the merits, whether or not the parties appear, the judgment is relevant for the present purpose, in so far as it makes a definite negative pronouncement regarding inherent power of the appellate court and specifically holds that an appeal once decided cannot be reheard under the inherent power.

Need for amending the Law as regards to the Power of Courts to Restore Criminal Revision Applications and Criminal cases dismissed for Default in Appearance Back

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