# SANKATHA SINGH v. STATE OF U.P

- **Citation:** [1962] Supp. 2 S.C.R. 817
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Criminal Revision No. 1299 of 1957
- **Bench:** S. K. DAs, K. SUBBA RAo, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sankatha-singh-v-state-of-u-p-2346
- **Pages:** 6

## Headnote

817
Criminal Procedure-Appellate Court's power to ~e-hear
appeal after having dismissed it earlier-Code of Criminal
l'rocedure, 1898 (Act V of 1898), sa. 367, 369, 424.
The question for decision was whether a crimi?al
appellate court could order the re-hearing of an appeal which
it had earlier dismissed, when neither the. appellant< nor
their counsel appeared, holding that it h.ad perused t.he
record of the case and
saw no reason for interference with
the triaJ court's order.
Held, that the appellate court's omission to write a
detailed judgment in a criminal appeal in which neither the
appellant nor his counsel appeared might not be in compliance
with the provisions of s.367·of the Code of Criminal Procedure
and might be liable to be set aside by a superior court, but
'vill not give that court itself power to set it aside and re·hear
the appeal.
At the re-hearing of the appeal the successor of the
appellate court was competent to consider, on an objection
bei?g raised by the other party, whether the appeal was
vahdly up for hearing before him.
Section 369 read with s. 424 of the Code of Criminal
Procedure specifically prohibits the altering or reviewing of
its order by a court.
Inherent powers of the court cannot be exercised to do
what the Code specifically prohibits the court from doing.

## Text

2 S.C.R.
SUPREME COURT REPORTS
SANKATHA SINGH
v.
STATE OF U.P.
(S. K. DAs, K. SUBBA RAo and RAGHUBAR
DAYAL, JJ.)
817
Criminal Procedure-Appellate Court's power to ~e-hear
appeal after having dismissed it earlier-Code of Criminal
l'rocedure, 1898 (Act V of 1898), sa. 367, 369, 424.
The question for decision was whether a crimi?al
appellate court could order the re-hearing of an appeal which
it had earlier dismissed, when neither the. appellant< nor
their counsel appeared, holding that it h.ad perused t.he
record of the case and
saw no reason for interference with
the triaJ court's order.
Held, that the appellate court's omission to write a
detailed judgment in a criminal appeal in which neither the
appellant nor his counsel appeared might not be in compliance
with the provisions of s.367·of the Code of Criminal Procedure
and might be liable to be set aside by a superior court, but
'vill not give that court itself power to set it aside and re·hear
the appeal.
At the re-hearing of the appeal the successor of the
appellate court was competent to consider, on an objection
bei?g raised by the other party, whether the appeal was
vahdly up for hearing before him.
Section 369 read with s. 424 of the Code of Criminal
Procedure specifically prohibits the altering or reviewing of
its order by a court.
Inherent powers of the court cannot be exercised to do
what the Code specifically prohibits the court from doing.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 145 or 1959.
Appeal by special leiive from the judgment
and order dated March 19,1959, of the Allahabad
High Court in Criminal Revision No. 1299 of 1957.
8. P. Sinha and P. C. Agarwala, for the appellant.
G. C. ,~fathur and C. P. Lal, for the respondent.
1962. January 25.
The ,Judgment of the
Court was delivered by
1962
January 25.
Jt16Z
8...Uth• s i•th
v.
S1<1t1 •JU. P.
R•g,,.har Dayal J.
818
SUPRE~fE COURT REPORTS [l!l62) Sl'PP.
RAORUBAR DAYAL, J.-Sankatha Singh and
others appeal against the order of the All aha had
High Court diFmissing their application for revisrnn
of the order of the Sessions Judge, Gyanp ur,
holding the ordl'r of his predeceBSor for the rehearing of an appeal which had bPen dismissed
earlier to hi" ultra 1Jires and without jurisdiction and
directing the Magi8trate to take immediate steps
to l'Xecute thi> order passed by it, according to
law.
The appellants were convicted by the Magistrate, I Class, Gyanpur, of offences under ss. 452
and 323 read with s.34, I.P.C. Kharpattu, one of
the appellants, was also convicted of an offenco
under s. 324, ·J.P.C. They appealed against thrir
Ponviction.
The appPal was fixed for hearing on
XoYemher 30, 1956. On that <lat(', noilht'r t:1e
appellants nor their counsel appPared in Court and
the learned Sessions Judge dismissed thl' appeal.
The rel"'·ant portion of his order is :
"The appellants have beon absent, and
their learned counsel has also not appeared
to :uguc the appeal on behalf of the appelJ.mts.
I have perused the judgment of the
learned Magistrate and seen the record. I
find no ground for any interference. The
appeal is accordingly dismissed."
On December J 7, 1956, an application was
presPntcd hy the appellsnts praying that the P.ase
he reston·d to its original numbor so that justico he
doirn to t h«m.
In expl11.ining their absence from
Court on thn <lato of hearing, it was said that they
reRchcd the Court somewhat lntc due to the Ekka,
by which they were travellin~" over· turning arcidontally on the way and, ru1 a result, lht>ir getting
injurit•s. This application was allowed, on July
2, I !l5i, hy the lcarne<l Sessions Judge, Sri Tej Pal
Singh, who had dismissed the appeal. His reasons
for allowing the application appear, from his orde1,
2 S.0-.lt.
SUPREME COURT REPor.·rs
819
to be that the apnlioation' supported by an affidavit, showed that there was sufficient cause for the
non-appearance of the appellants-accused at the
time of the hearing of the appeal, that s. 423 of the
Code of Criminal Procedure (hereinafter called the
Code) enjoined the appellate Court to dispose of
the appeal on merits after hearing the appellant or
his pleader and the Public Prosecutor, that no
notice was ever isAued to the appellants as required
bys. 422 of the Code, that s. 367 of the Code la.id
down what a judgment should contain and that his
judgment of November 30, 1956, amounted to no
judgment as it did not contain some of those
salient points, that the judgment was without
jurisdiction as the case was not really considered
and no independent judgment was arrived at and
th~t it was necessary that the appeal be re-heard in
the ends of justice.
Sri Tripa.thi, who succeeded Sri Tej Pal Singh
as Sessions Judge, and before whom the appeal was
put up for re-hearing, was of the opinion that the
appellate Court had no power to review or restore
an appeal which had been disposed of and that
therefore the order of his predecessor dated July
2, 1957, was ultra vires and passed without jurisdiction.
Against this order, the appellants went in
revision to the High Court. The learned Judge
of the High Court · agreed with the views of Sri
Tripatbi and accordingly, dismissed the revision
application.
The sole point for determination in this
appeal is whether Sri Tej Pal Singh could set aside
his £rot order dat.Ad No>ember 30, 1956, dismissing
the appeal, when neither t.he appellants nor their
counsel appeared and could order the re-hearing of
the appeal. We are of opinion that he could not
do so and that therefore the view taken by the
High Court is correct.
1962
Sankatha Singh
v.
,)tare of U. P.
Ragl.ubar Dayal J.
1962
Bal11Aa Bm16
v.
8..U of U. P.
BogMbor D41'1 J.
820 SUPREME OOURT REPORTS [1962) SUPP.
A criminal appeal cannot be dismiBBed for the
default of the appellants or their counsel. The
Court has either to adjourn the hearing of the
appeal to enable them to appear, or should consider
the appeal on merits and p&SS the final order. Sri
Tej Pal Singh was a.ware of this as his order itself
indicates.
He did not dismiss the appeal for
default. He himself perused the judgment of the
Magistrate and the record and did consider the
merits, as he says in his order : 'I find no ground
for any interference'. The mere fact that he ha.d
not expreBSed his reasons for coming to that opinion
does not mean that he ha.d not considered the
material on record before coming to the conclusion
that there was no case for interference. His
omission to write a detailed judgment in the circumstances may be not in eomplianci> with ~he
provisions of s. 367 of the Code and may be liable
to be set as.ide by a superior Court, but will not
give him any power to set it aside himself, and
re·hear the appeal. Section 369, rea.d withs. 424, of
the Code, makes it clear ·that the appellate
Court is not to alter or review the judgment once
signed, except for the purpose of correcting a
clerical error.
Sri Tej Pal Singh was in error when he
thought that s. 423 of the Code enjoined the appellate Court to dispose of the appeal after hea.ring
the appellant or his pleader and the Public ProBecutor.
He omitted to notice tho words 'if he
appears' aftP-r tho expros.~ion 'and hearing the
appellant or his pleader'. If none of these appears
at the hearing, the appellate Court can proceed
with the disposal of the appeal on merits. Of
<'ourse, a notice to t,he appellant or his counsel of
the date of hearing is an rssential precedent for
the hearing of the appeal, in view of s. 422 of the
Corle, Sri Tej Pal Singh states, in his order dated
."tu]_,. 2. I p,;7 :
•
2 S.C.R.
SUPREME COURT RE FORTS
821
"It will also appear that the conditions
of s.422, Cr. P. C. were also not fulfilled, as
no notice was ewir issu·ed to the appellant."
Ho again missed noticing that a notice of the
hearing of the appeal has to be given either to the
appellant or to his pleader and need not be given
to both. He does not say in his order_ that no
notice of the date of hearing had been given to the
appellants' counsel. The practice, usually, is to
gi've notice of the date of hearing of the appeal to
the counsel who informs the appellant, and not to
the appellant personally. The application for
restoration indicates that the appellant knew of the
date of hearing.
It has been urged for the appellants that Sri
Tej Pal Singh could order the re-hearing of the
appeal in the exeroise of the inherent powers which
every Court possesses in order to further the ends
of justice and that Sri Tripathi was not justified in
any case to sit in judgment over the order of Sri
Tej Pal Singh, an order passed within jurisdiction,
even though it be erroneous. Assuming that Sri Tej
Pal Singh, as Sessions Judge, could exercise inherent
powers, we a.re of opinion that he could not pass
the order of the re-hearing of the appeal ii:J. the exercise of such powers when s. 369, read with s. 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. Sri
Tripa.thi was competent to consider when the other
party raised the objection whether the appeal was
validly up for re-hearing before hiru. He considered the question and decided it rightly.
It i~ also urged for the appellants that Sri
Tej Pal Singh, had the jurisdiction to pass orders
on the application presented by the appellants on
December 17, 1956, praying for the re-hearing of
the appeal and that therefore his order could not
1962
Sankalha Sin1h
v.
Stahoj U.P.
1962
v.
Stot.ofU. P.
Rogllubar DaJol J,
IHJ
822 SUPREME COURT REPORTS [l9o2] SUPP.
b.e said to have been absolutely without jurisdict10n. We do not agree.
He certainly had jurisdiction to dispose of the applimtion presented to him,
but when s. :l69, of the Code <ldinitcly pi ohiLited
the Court's reviewiug or alteriug it8 judgment, he
had no jurisdiction to con8ider the point raised and
to set aside the order di8rnissi11g the appeal and
order its re-hearing.
We therefore see no force in this appeal and
accordingly dismi8s it.
A ppe.al d ismis;;t d.
THE MANAGE:IJE~T OF U.B. DUTT & CO.
v.
WORKMEN OF U.B. DCTT & CO.
(P. B. GA.,JE!'IDRAGADKAR, A. IC SARKAii and
K. N. WANCllOU, JJ.)
Induatrial Dilpul<-1'ermination of .•m.·ice of employee
in lerln6 of contract-Dropping of propnsed deparlrrumtal •nquiry
-If colcurable exercise of power-If ca11 be questioned before
i11d1Utrial-tribu1.al-Principle tuminating Government Service
-If IJf>Plits to indUdtrial emplcyeu.
S, employed by the appellant as a cross cutter in the
saw mill was asked to show cause why his services should not
be terminated on account of grave indiscipline and misconduct
and he denied the allegations of fact.
He was thereafter
informed about a department enquiry to be held against him
and was suspended pc~ding enquiry. Purporting to act under
r. 18(a) of the Standing Orders, the appellant terminated the
services of S, without holding any departmental enquiry. The
industrial tribunal to which the dispute was referred held, that
action taken, after dropping the proposed departmental pro·
ceedings was not bonafid< and was a colourable cx.rcisc of the
power conferred under r. 18(a) of the Standing Order and
aince no attempt was made before it to defend such action by
proving the alleged misconduct, it passed an order for reinstatement of S. The appellant contended that as the termination
was strictly in accordance \Vith the terms of contract under
r. 18(a) of the Standing Ordcn, it was entitled to dispense
•