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Gauhati High Court · body

1994 DIGILAW 125 (GAU)

Hovito Sema v. State of Nagaland and Another

1994-06-29

W.A.SHISHAK

body1994
This appeal is directed against the order passed by the learned Additional Deputy Commissioner (Judicial) Zunheboto in Ratakba PS Case No. 2 (7) 91 vide GR 72/91 under section 419/420/468 IPC by which the appellant was convicted and sentenced to undergo 1£ (one and half year) under section 420 IPC and 1£ (.one and half year) under section 468 IPC. Further the appellant was also directed to pay a line of Rs.5,000/- (Rupees five thousand) and the sentences passed under section 420 IPC and section 468 IPC i. e to run consecutively and in default of payment of fine aforesaid the appellant was directed to undergo another one and half (1|) RI. The only ground taken in this appeal is that by the same Court in respect of the same case and in respect of the appellant, by an earlier order dated 17.3.93 the appellant was found innocent and he bad been discharged from criminal liabilities. Relevant portion of the order reads as under : "In respect of Shri Hovito Sema. I did not find any fault committed by him during his tenure as VDB Secretary of Vishepu Village. In the last part of his tenure as VDB Secretary, the amount of Rs.52,000/- was drawn with the approval of the VDB members in the village so I did not find any foul play on his part as such I have discharged him from criminal liabilities." 2. The case involves loss of village development fund and it is a serious case. GR Case 72/91 was registered against appellant under section 419/420/ 468 IPC After investigation was over, the appellant was charge sheeted on 2.12.92 under the aforesaid sections of law. As stated above, the learned Court of ADC (Judicial) discharged he appellant from criminal liabilities by his order dated 17.3.93. 3. There after a letter was addressed to the learned ADC (Judicial) by the Deputy Commissioner, Zunheboto vide Annexure 2 regarding re-trial/revision of the case in GR 72/91 in connection with the misappropriation of VDB Vishepu Village In this letter, it is stated that "An application has been submitted to this office by Shri Shikheho Sema, Inquiry Board Chairman, VDB of Vishepu Village with a prayer to review/retrial of the case under Rules 16, Administration of Justice and Police in Nagaland. On examination of case records it is revealed that the facts and circumstances of the case in effecting the administration of justice involving misappropriation of public money by individual with forged signature of DC which may lead to extra punishment in the case. Considering the above facts and in the interest of justice, I am of the view that the case may be revised effectively. The appli­cation in original is also enclosed herewith for your further necessary action.” 4. On receipt of the aforesaid letter from the Deputy Commissioner, the learned ADC (Judicial) revised the case and summoned the appellant to appear before the Court to stand the trial in connection with the same case. On 21.9.93 the appellant submitted an application to the learned Court stating that the case was already disposed of on 17.3.93 and as such the learned ADC (Judicial) cannot re-open the same case inasmuch as the orders passed by him have become conclusive. It was also stated that once the case was decided by the learned ADC (Judicial) he had become functus-officio as far as the case is concerned. However, the learned ADC (Judicial) proceeded with the same case by re-opening the case in the form of criminal revision as is stated in the impugned order passed by him. 5. The point that requires my consideration is whether it is open to the learned ADC (Judicial) to alter or to re-open a case which had earlier been decided finally. In terms of section 362 of CrPC, it appears once the Court has signed its judgment or final order disposing of a case, it cannot alter or review the same except to correct a clerical or arithmatical error. As stated above, the learned Court earlier passed the final order discharging the appellant from ail criminal liabilities. He re-opened the case as instructed by the Deputy Commissioner. And in the second trial the same person (the appellant) was found guilty and he was convicted and sentenced to impfisomment and also to fine as stated above. It appears section 362 prohibits all Courts from altering or reviewing its judgment when it has signed it. Indeed no criminal Court has any power to add, alter or review its judgment after it is signed. Further it may be stated that after an order has been signed, the Court become functus officio as far as that case is concerned. 6. Indeed no criminal Court has any power to add, alter or review its judgment after it is signed. Further it may be stated that after an order has been signed, the Court become functus officio as far as that case is concerned. 6. If aggrieved by the earlier order dated 17.3.93, the aggrieved party could have sought for review/revision or appeal in an appropriate manner. The same Court cannot revise its own order. 7. Case record has been received. However, it is unfortunate to say that not even a forwarding letter is enclosed. It appears the record was simply sent through some assistant from Zunheboto. On perusal, no order sheets are available. Not even a copy of impugned order is available. Some statements of witnesses are, however, available. It appears the record itself is incomplete. The manner in which judicial record is maintained would hardly inspire confidence in the mind of the public. Judicial Officers are expected to be careful in handling judicial records. It is expected that in the future judicial records will be maintained in a systematic manner. 8. In the facts and circumstances that I have narrated above, the impugned order of conviction and sentence or imprisonment and fine is set aside. It is made clear that if fine of Rs. 5.000/- (Rupees five thousand) as imposed had been paid, the same should be refundad to the appellant. The order passed on 17,3.93 in OR 72/91 shall remain. In the peculiar facts and circumstances of the case and especially on the basis of submissions made on behalf of the State, if any party including the State is aggrieved by the order of discharge dated 17.3.93, revieion or appeal may be preferred against the said order before a competent and proper forum within two (2) months from today and if revision or appeal is filed within the aforesaid period of two months, delay, if any, shall stand condoned and such revision or appeal shall be heard and disposed of on merit. With the above observation aud direction, this petition is disposed of. Office to send down record immediately.