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Report No. 47

9.21. Review of Judgment.-

There is one important question now to be dealt with, namely, review. Because of the restriction contained in the Criminal Procedure Code1, a criminal court cannot in general review its judgment, except to correct a clerical error. Controversies as to small details about the interpretation of the provision containing the above restriction are not relevant for the present purpose. The law in England as to the review of criminal convictions is not different in substance. Broadly, the position is that-

(a) A Court has always the power to alter a sentence so long as the Court is in session.

That is to say, at assizes, the Judge who has passed a sentence may, at any subsequent date till the assizes are completed by signing of a document delivered to the gaoler as recording the sentence of the Court, alter the sentence either by reducing or even increasing it. Similar power can be exercised at Quarter Session2.

(b) Once the judgment has been entered on the record, no Court can alter it3.

1. Section 369, Code of Criminal Procedure.

2. Archbold (1966), para. 633.

3. R. v. Casey, (1923) 23 Cr App Rep 193.

9.22. We are of the view that this position requires to be changed in relation to the offence under the major Acts with which this Report is concerned. Whether the provision in the Criminal Procedure Code barring review requires modification in respect of other offences also, need not be discussed in the present Report.

9.23. It may be of interest to note that the Supreme Court has, under Article 137 of the constitution and subject to the provisions of any law passed by the Parliament or rules made under Article 1451, power to review "any judgement pronounced or order made by it"2. In pursuance of this article, the Supreme Court had made the following rule3:-

"1. The Court may review its judgement or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record."

It is to be noted that the application is competent only to correct an error apparent on the face of the record. This would take in only one of the various grounds of review mentioned in Order 47, rule 1 of the Code of Civil Procedure, which deals generally with review by civil courts.

1. See Article 145(1)(e) of the Constitution as to rules.

2. See AIR 1957 SC 742.

3. Order 40, rule 1, Supreme Court Rules, 1966.

9.24. Order 47, rule 1, Civil Procedure Code, 1908 (5 of 1908), is as follows:-

"1. Application for review of judgment.-(1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree of order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matters or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review, of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being the respondent, he can present to the Appellate Court the case on which he applies for the review."

9.25. It would also be of interest to note that in the U.S.A. a judgment of conviction rendered at the end of a criminal trial does not necessarily dispose of the case. In addition to permitting recourse to direct review of convictions for most offences, all American jurisdictions permit the defendant to attack his conviction by what have come to her known as "post-conviction" remedies in some circumstances. Such attack may be by habeas corpus, coram nobis, or some special procedure created by statute. In some cases, motions for new trial on the discovery of evidence or for correction of sentence, or to vacate judgment, are available after the time limit for appeal has expired.

9.26. While the general position as to the scope of review in criminal cases is outside the ambit of this Report, we are of the view that in respect of the offences with which this Report is concerned, there should be a power of review, having regard to the impact of these offences on the welfare of the nation.

9.27. We recommend that a provision similar to Order 47, rule 1, Code of Civil Procedure should be introduced to permit review in respect of judgements in prosecutions under the Acts with which this Report is concerned. In making this recommendation, we do not wish to make a distinction between review at the instance of the prosecution and review at the instance of the accused.

The following section is suggested:-

"(1) Any person considering himself aggrieved-

(a) by the judgment or order of a criminal court in a prosecution under this Act from which an appeal is allowed, but from which no appeal has been preferred, or

(b) by a judgment in such prosecution from which no appeal is allowed, and who, from the discovery of new and important matters or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the judgment was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the judgment passed or order made against him, may apply for a review of jiidgment to the Court which passed the judgment or made the order.

(2) A party who is not appealing from a judgment or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of such appeal is common to the applicant and the appellant, or when, being the respondent, he can present to the Appellate Court the case on which he applies for the review.

(3) The Court to which an application is made for review of judgment shall, after giving the parties a reasonable opportunity of being heard, pass such orders as it thinks fit, and may, pending such hearing, stay execution of the judgment or order on such term as it thinks just."

[The subsequent procedure will, of course, be regulated by provisions which will have to be drafted.]



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