GANGADHARA SHETTY v. STATE OF KARNATAKA — 1989 DIGILAW 163 (KAR)

K. B. NAVADGI, J. ( 1 ) THIS is a petition u/s. 482 of the Cr. P. C. . ('the Code' for short ). Gangadhara Shetty, the petitioner, has prayed to extend the benefit of the provisions contained in S. 4 of the Probation of Offenders Act ('the Act' for short) to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. The petitioner has filed his affidavit in support of the prayer and has also produced the certified copy of the judgement and order, dt. 16-1-1989 made by this Court in Criminal Revision Petition No. 271/1988. ( 2 ) THE record is perused. ( 3 ) THE learned counsel for the petitioner and the learned Additional State Public Prosecutor are heard. ( 4 ) THE matter arises in this way : the petitioner was tried of the offences punishable u/ss. 279, 337 and 338 of the Penal Code by the Judicial Magistrate First Class, Thithahalli, in C. C. No. 369/1984 on his file. The prosecution adduced evidence in support of the accusation. The learned trial Magistrate on consideration of the evidence held that the offences alleged against the petitioner had been brought home beyond reasonable doubt. The trial Magistrate convicted the petitioner of the offences alleged and sentenced him to pay a fine of Rs. 750, Rs. 250/- and Rs. 500/- for the offences punishable u/ss. 279, 337 and 338 of the Penal Code, respectively. He directed the petitioner to suffer simple imprisonment for a period of 2 months, 1 month and 2 months respectively in default of payment of fine under each of the three counts with a further direction that the default sentences shall run consecutively. ( 5 ) FEELING aggrieved by the judgement and order of convictions and sentences passed by the trial Magistrate, the petitioner preferred an appeal before the Court of Sessions at Shimoga in Criminal Appeal No. 19/1985. The learned Principal Sessions Judge, Shimoga, on reappreciating the evidence held that the judgement and order of convictions and sentences appealed against was legal and correct, justifying no interference. In view of this conclusion, the learned Principal Sessions Judge (the Appellate Court) dismissed the appeal confirming the judgement and order of convictions and sentences. The learned Principal Sessions Judge, Shimoga, on reappreciating the evidence held that the judgement and order of convictions and sentences appealed against was legal and correct, justifying no interference. In view of this conclusion, the learned Principal Sessions Judge (the Appellate Court) dismissed the appeal confirming the judgement and order of convictions and sentences. ( 6 ) THE petitioner feeling aggrieved by the judgement and order made by the Appellate Court confirming the judgement and order of convictions and sentences passed by the trial Magistrate (the trial Court) came in revision to this Court in Criminal Revision Petition No. 271/1988. ( 7 ) THIS Court by the judgement and order dt. 16-1-1989 dismissed the Revision Petition in part and allowed it in part. The Revision Petition was dismissed in so far as it related to the challenge made to the convictions of the petitioner in respect of the offences punishable under u/ss. 279, 337 and 338 of the Penal Code and sentences inflicted on the petitioner in respect of the offences punishable u/ss. 337 and 338 of the Penal Code. The Revision Petition was allowed in so far as it related to the challenge made to the sentence of fine imposed on the petitioner in respect of the offence punishable u/s. 279 of the Penal Code. With the modification in the sentences as stated above the Revision Petition was dismissed in all respects. ( 8 ) IT has to be stated that the trial Court could have dealt with the petitioner under the provisions of the Act in its discretion. It did not do so. It also did not record in its judgement the special reasons for not having done so. ( 9 ) THE Appellate Court, which could have passed an order under the provisions of the Act within its discretion, when the case of the petitioner was before it on appeal, by virtue of the powers vested in it u/s. 11 of the Act did not examine the question as to whether the benefit of the provisions of the Act could have been extended to the petitioner. ( 10 ) THE learned counsel for the petitioner while arguing the Revision Petition did not assail the legality and correctness of the judgement and order of convictions and sentences passed by the trial Court as affirmed by the Appellate Court on the ground that there was non-compliance with the mandatory provisions contained in S. 361 of the Code. Nor was it urged before this Court at the time of hearing of the Revision Petition that the case of the petitioner deserved the application of the salutary provisions contained in S. 4 of the Act. It was submitted by the learned Counsel for the petitioner that though a ground in that regard was taken in the memorandum of Criminal Revision Petition, the ground was not urged for consideration since the petitioner was under the impression that he had a good case on merits and that his Revision Petition was entitled to succeed. ( 11 ) IN view of the aforesaid facts and the finality, the prosecution launched against the petitioner has reached, the learned Counsel for the petitioner did not urge, quite rightly in my opinion, that the judgement and order of convictions and sentences made by the trial Court and confirmed and affirmed in the appeal was illegal in view of the disobedience to the mandate of law as enjoined by S. 361 of the Code. ( 12 ) LEARNED counsel for the petitioner placing reliance on several decisions, to which I shall advert very persuasively, submitted that notwithstanding the disposal of the Revision Petition by this Court, the Court can exercise the inherent powers vested in it u/s. 482 of the Code to extend the benefit of the provisions contained in S. 4 of the Act to the petitioner in view of the facts and circumstances of the case showing clearly that the case of the petitioner is a preeminently fit one to invoke the generous and rehabilitatory mandate given in S. 4 of the Act. According to him the case of the petitioner required and needed the application of the salutary provisions of S. 4 of the Act. ( 13 ) AS against this, the learned Addl. According to him the case of the petitioner required and needed the application of the salutary provisions of S. 4 of the Act. ( 13 ) AS against this, the learned Addl. State Public Prosecutor inviting the attention of the Court to certain decisions, to which I would presently refer, contended that the bar enacted in S. 362 of the Code would come into play and that this Court even in the exercise of the inherent powers vested in it u/s. 482 of the Code cannot extend the benefit of the provisions of S. 4 of the Act. ( 14 ) IN view of the contentions raised at the Bar, the questions that arise for consideration and determination in this proceeding, are these : (i) Whether this Court in this proceeding can, in exercise of the powers vested in it u/s. 11 of the Act and the inherent powers confided in it u/s. 482 of the Code, examine the question of applicability or otherwise of the provisions contained in S. 4 of the Act to the case of the petitioner ? (ii) If the answer to the first question is in the affirmative, whether the case of the petitioner deserves the application of the provisions of S. 4 of the Act ? ( 15 ) SECTION 482 of the Code reads :-"482. Saving of inherent powers of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. "it is by now well settled that the Section confers no new powers on the High Court. It merely safeguards all the existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. The Section provides that those powers which the Court inherently possesses shall be preserved, lest it be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent powers had survived the passing of the Code. ( 16 ) SECTION 362 of the Code provides :"362. The Section provides that those powers which the Court inherently possesses shall be preserved, lest it be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent powers had survived the passing of the Code. ( 16 ) SECTION 362 of the Code provides :"362. Court not to alter judgement - Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgement or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. "this Section read with S. 387 of the Code makes it very clear that no Court, when it has signed its judgement or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error, save as otherwise provided in the Code or by any other law for the time being in force. ( 17 ) THE word 'judgement' is not defined in the Code. In Halsbury's Laws of England, II Ed. , Vol. 9, pages 260 to 264, it has been stated that judgement in Criminal Proceedings is indicated to include the final order in a trial terminating in a conviction or acquittal of the accused. We have taken this statement to be the meaning of the term judgement. ( 18 ) THE word 'judgement' is the expression of the opinion of the Judge or Magistrate arrived at after due consideration of the evidence and of the arguments. It is a decision in a trial, which decides the case finally so far as the Court trying the case is concerned and terminating either in conviction or acquittal. To constitute judgement within the meaning of S. 362, there must be an investigation on the merits of the case on the evidence and after hearing the arguments. The revision petition of the petitioner against the judgement and order of conviction and sentence passed by the Trial Court as affirmed by the Appellate Court was disposed of by the judgement and final order of this Court on 16-1-1989. ( 19 ) IT cannot be said that the present petition seeks to correct a clerical or arithmetical error in the judgement and the final order. ( 19 ) IT cannot be said that the present petition seeks to correct a clerical or arithmetical error in the judgement and the final order. The clerical or arithmetic error is an error occasioned by an accidental slip or omission of the Court. It represents that which the Court never intended to say. It is an error apparent on the face of the record and does not depend for its discovery an argument or disputation. The Supreme Court in Smt. Sooraj Devi v. Pyare Lal, 1981 Cri LJ 296 : ( AIR 1981 SC 736 ) held that an arithmetical error is a mistake of calculation and a clerical error is a mistake in writing or typing. ( 20 ) THE next question that arise for consideration is, whether the grant of prayer made in the petition amounts to alteration or review of the judgement rendered by this Court in the Criminal Revision Petition. ( 21 ) IN my considered view, it is not permissible to invoke the provisions of the Act as that would amount to alteration or review of the judgement passed in the Revision Petition. ( 22 ) IN State of Orissa v. Ram Chander Agarwala, AIR 1979 SC 87 , the facts were these :a final order had been passed in a Revision Petition sentencing the Managers or the Managing Partners of Firms to substantive sentences of rigorous imprisonment for six months. In the review petition, the same had been altered to a fine of Rs. 3,900/- which was the sentence awarded on the Firm. The State of Orissa had appealed to the Supreme Court against the alteration order made by the High Court. The Supreme Court after referring to a number of decisions on the point upheld the contention and ruled that the High Court had no power to review its own order. In the said case, it has been clearly held that once a judgement has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgement as there is no provision in the Code, which would enable the High Court to review the same or to exercise the revisional jurisdiction. It has been further held that the bar created by Sec. 369 of the Cr. It has been further held that the bar created by Sec. 369 of the Cr. P. C. , 1898, the old Code for short if and when necessary, which was in pari materia with S. 362 of the Code is not restricted to the Trial Court alone and that inherent powers cannot also be invoked for exercise a power which is specifically prohibited in the old Code. ( 23 ) IN Naresh v. State of U. P. , AIR 1981 SC 1385 : 1981 Cri LJ 1044, the conviction entered u/s. 302 on a specific and express finding that the accused intended to kill the deceased, had been altered subsequently to S. 304, Part I of the Penal Code. The Supreme Court viewed the same with grave concern and expressed its serious displeasure at the course of events in the High Court. ( 24 ) THE decision in Mai Ditta Singh v. State of Punjab, 1981 Chand LR (Cri) 147, rendered by a Division Bench of Punjab and Haryana High Court, in my considered view does not help the submission of the petitioner that the petition filed u/s. 482 of the Code is maintainable. In the said case, the appellant petitioner had been convicted by the Trial Court u/s. 302 of the Penal Code and Ss. 25 and 27 of the Arms Act. He had been awarded imprisonment for life, rigorous imprisonment for one year and rigorous imprisonment for six months respectively on the said three counts. The sentences had been ordered to run concurrently. The appeal preferred by the appellant-petitioner had been disposed of by the High Court on 5-12-1979. The appeal had been partly allowed. The conviction and sentence u/s. 302 of the Penal Code had been set aside and instead, the appellant-petitioner had been convicted u/s. 306 of the Penal Code. He had been ordered to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 3,000/- with a default clause. He had been acquitted of the offences under Ss. 25 and 27 of the Arms Act. He had been ordered to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 3,000/- with a default clause. He had been acquitted of the offences under Ss. 25 and 27 of the Arms Act. ( 25 ) THE appellant-petitioner after the disposal of the appeal had filed an application seeking the benefit of S. 4 r/w S. 6 of the Act on the ground that he was below 21 years of age on the date of the commission of the offences alleged against him and as such he was entitled to the benefit of the provisions of the Act. The High Court, on consideration of the material, held that the question of age of an accused person would be a relevant factor since it would be taken into consideration by the Court while imposing sentence on him and that if the prosecution wanted to dispute the age given by the accused, it would be for it to establish the assertion. The High Court further held in the absence of evidence to connect the entry with the individual concerned or in the absence of the evidence of the person making the entry or giving information, the birth certificate would not prove itself the age and would be no proof of age of any particular person. ( 26 ) DEALING with the contention raised by the learned Advocate-General that the petition after the disposal of the appeal was not maintainable, the High Court following the decision of a learned single Judge of that Court in Cr. Misc. No. 743-M of 1969 negatived the contention. "in Criminal Miscellaneous No. 743-M/69 (Ved Prakash v. State) it was held that the words "on appeal or in revision" appearing in S. 11 (1) of the Act do not go with the words "also by the High Court" and do not place any limit as to when the High Court is competent to exercise its powers u/s. 11 (1) of the Act. It was also held in the said case, that the words "on appeal or in revision" would only qualify the powers of "any other Court. "relying on the decision in the case of Ved Prakash (Crl. Misc. No. 743-M/69, Dt. It was also held in the said case, that the words "on appeal or in revision" would only qualify the powers of "any other Court. "relying on the decision in the case of Ved Prakash (Crl. Misc. No. 743-M/69, Dt. 12-9-69) and the law laid down by the Supreme Court in Rattan Lal v. State of Punjab, AIR 1965 SC 444 the High Court held that an application u/s. 11 of the Act to accord benefit of Sec. 4/6 of the Act may be entertained by the High Court at any time even after the disposal of the appeal or revision filed by the petitioner. It is clear that the question as to whether any order made on an application under Sec. 11 of the Act, extending the benefit of S. 4/6 of the Act would be permissible or not in view of the embargo laid in S. 369 of the old Code, S. 362 of the Code was not considered either in the case of Ved Prakash or in the case of Mai Datta Singh. ( 27 ) THE petitioner, in my considered view, cannot derive any help or assistance from the decision in Mullapudi Venkanna v. State of Andhra Pradesh, AIR 1964 Andh Pra 449. In that case, the question for consideration was whether the High Court had power to order sentences inflicted in two different cases against the same accused to run concurrently. It was held that the Court could exercise the power under u/s. 561a r/w. Ss. 435 and 397 (1) of the old Code. It was also held that in the event of the exercise of such power, there would be no question, either of altering or reviewing the judgement and overriding the specific provisions of S. 369 of the Code, because the judgement will stand as it is and the order passed under S. 561-A would be a separate order and complete by itself. ( 28 ) IT is my considered view that passing of an order extending the benefit of S. 4 of the Act to the petitioner in this petition would amount to alteration or review of the judgement and final order made by this Court in the Criminal Revision Petition. Any alteration or modification in the sentence at a point of time, subsequently to the date of judgement disposing of a case, amounts to review of the judgement. Any alteration or modification in the sentence at a point of time, subsequently to the date of judgement disposing of a case, amounts to review of the judgement. Under the scheme of the Act, the benefit of release on probation can be given instead of sentencing the person held guilty at once to any punishment. If the petitioner is now ordered to be released on probation on good conduct instead of complying with the sentence of fine awarded against him by the judgement and final order passed by this Court in the Criminal Revision Petition, it is my considered view that it would amount to alteration or review of the judgement and final order made by this Court in so far as the sentence is concerned. ( 29 ) IN the case of Ramachandra Rao*referred to supra, the substitution of a sentence of fine for the substantive sentence of imprisonment at some time subsequent to the date of judgement was regarded as not permissible in view of S. 362 of the Code. It is by now well settled that any alteration of or modification in the sentence alone without touching the merits or the Section under which conviction is recorded, amounts to a review if the judgement in the eye of law. ( 30 ) IN Dasappa v. State of Mysore, 1965 (2) Cri LJ 372 : AIR 1965 Mys 224 the accused had been sentenced to rigorous imprisonment of four months for the offence u/s. 380 of the Penal Code. They had filed Criminal Revision Petition against the order of conviction and sentence. This Court had dismissed the Criminal Revision Petition. The Accused had subsequently filed Revision Petition stating that they were respectively aged 32 years and 17 years, that they had clear antecedents and failed from respectable families and that therefore, they should be given the benefit of the provisions of the Act. The Advocate for the Accused had urged that it was through oversight that he could not make his submissions on the question of sentence in the light of the provisions of the Act at the time when he argued the revision petition and that the Court should consider the new point to secure the ends of justice under the inherent powers of the Court. This Court held that the case of the Accused did not come under any of the provisions of the old Code and that the review petition was misconceived. This Court further held that a review of the kind sought for by the Accused would be clearly against the principle of finality of orders of dismissal passed by the High Court and that the Accused were to blame themselves for not having apprised their Advocate of all material facts. ( 31 ) THIS Court further held that the provisions of Ss. 4 and 6 of the Act are not mandatory and that the order of sentence passed on the Accused could not be said to be one without jurisdiction. The decision further lays down that the Court has got no inherent power to reopen a judgement in a case, which has been disposed in accordance with the provisions of law unless any of the provisions in the Code expressly empowered the Court to review or revise the judgement. ( 32 ) THE Gauhati High Court in Jagat Bora v. State of Assam, 1983 Cri LJ 1454 on facts almost identical with the facts in the instant case held that an application under Sec. 11 of the Act read with Sec. 482 of the Code after the final disposal of the Revision Petition by the High Court would not be maintainable in view of S. 362 of the Code. I am in respectful agreement with the view taken by the Gauhati High Court. ( 33 ) FOLLOWING the decision of this Court in the case of Dasappa and another and in view of the reasons given earlier, I hold that it is not permissible to entertain the present petition filed under Sec. 482 of the Code in view of the bar imposed by S. 362 to examine the applicability or otherwise of the provisions contained in the Act to the case of the petitioner. Question No. 1 is answered accordingly. ( 34 ) IN view of Question No. 1 being answered against the petitioner, I do not consider it necessary to go into the question as to whether the petitioner has made out a case for extending the benefit of S. 4 of the Act in his favour. Therefore, answer on Question No. 2 is not warranted. ( 34 ) IN view of Question No. 1 being answered against the petitioner, I do not consider it necessary to go into the question as to whether the petitioner has made out a case for extending the benefit of S. 4 of the Act in his favour. Therefore, answer on Question No. 2 is not warranted. I, therefore, do not feel it necessary to advert to the decisions cited at the Bar in support of the submission that the petitioner deserves the benefit of S. 4 of the Act. The decisions cited are : (I) Aitha Chander Rao v. State of Andhra Pradesh, 1982 Cri LR (SC) 7. (ii) The decision of this Court in Criminal Revision Petition No. 554/1985, disposed of on 2-3-1987. ( 35 ) IN the result, for the reasons aforesaid, the petition is dismissed as not maintainable. Petition dismissed. --- *** --- .