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1970 DIGILAW 79 (BOM)

SADANAND SHABLI BHOBE v. STATE

1970-07-06

C.M.RAO

body1970
ORDER This is a petition filed under Section 561-A of Criminal P.C. 2. The facts which have given rise to this petition are these : The petitioner and two others were convicted and sentenced by the First Class Magistrate, Panaji, for offences under Sections 457 and 324, I.P.C. read with Section 34, I.P.C. In appeal the learned Sessions Judge at Panaji found the petitioner herein guilty only of the offence under Sec. 448, I.P.C. and reduced the sentence of imprisonment awarded to him. He sentenced him to undergo R.I. for 10 days. In revision this Court upheld the judgment of the learned Sessions Judge. During arguments before this Court; the learned advocate appearing for the petitioner contended that the sentence of 10 days R.I. awarded to the petitioner was severe, that the petitioner was a boy and that the sentence of imprisonment awarded to him (the petitioner) was fit to be set aside. The Court did not accept that contention of the petitioner's advocate. It was mentioned by this Court in its judgment that the age and antecedents of the petitioner were not mentioned, that the petitioner had entered the house along with other accused atnight and that it could not be said that the sentence awarded to the petitioner was serve. 3. The petitioner now stating that his age is 31 years and he is a first offender, that he is a businessman and belongs to respectable family, that his lawyer was not present in the trial court to cross-examine the prosecution witnesses, that the Sessions Judge did not give opportunity to his counsel to address on the quantum of sentence and that the offence under Section 448, I.P.C. for which he has been convicted is punishable with imprisonment or fine, prays to review the decision of this Court in revision and set aside the sentence of imprisonment awarded to him. 4. The point is whether the petition is maintainable under S. 561-A Cri.P.C. 5. The learned advocate for the petitioner relying on the decision of Allahabad High Court in Raj Narain v. The State, AIR 1959 All 315 (FB), argued that under S. 561-A, Criminal P.C. this Court has powers to review its judgment. I have gone through that decision. Even according to that decision powers under Section 561-A, Criminal P.C. will have to be exercised sparingly, carefully and with caution. I have gone through that decision. Even according to that decision powers under Section 561-A, Criminal P.C. will have to be exercised sparingly, carefully and with caution. Justice Chaturvedi observed in that decision that generally powers under S. 561-A, Criminal P.C. to re-hear a case can only be exercised where the facts of the case are shocking to the conscience and that Section 561-A, Criminal P.C. does not authorize the High Court to rehear a case where the applicant was not heard due to some fault of his or of his counsel. In the case on hand about quantum of sentence no argument was advanced in the Sessions Court. If the petitioners thought fit to argue in this Court that the sentences awarded to him was severe he should have mentioned necessary facts about it in the revision application. He did not mention anything about severity of the sentence either in the memo of appeal filed in the Sessions Court or in the revision application filed in this Court. During arguments in this Court in revision petition his advocate argued that the sentence awarded was severe and that point was decided by this Court. While advancing arguments in revision petition it was not brought to the notice of this Court that the lawyer of the petitioner was not present in the trial court and so the prosecution witnesses were not cross-examined by him and that the learned Sessions Judge had not given opportunity to advance arguments about quantum of sentence. Stating fresh grounds the petitioner cannot request this Court to review its decision which has become final. The petitioner according to his own statement is aged 31 years. He along with two others entered the house of the complainant at night and the two others who were with him bear the complainant. The sentence of 10 days' imprisonment given to him cannot be said to be severe. There is no reason to allow this petition. The petition is rejected. Petition dismissed.