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1998 DIGILAW 379 (MAD)

Joseph Kondody v. Michael Kurivilla

1998-03-10

K.A.MOHAMMED SHAFI

body1998
ORDER: 1. This petition is filed by the respondent in Criminal Appeal No.470 of 1994 under Sec.482 of the Crl.P.C. praying to afford the petitioner an opportunity of being heard on the question of sentence and to modify the order of sentence as deemed just and proper by this Court. 2. The petitioner was the accused in C.C.No.40 of 1993 on the file of the Judicial First Class Magistrate's Court, Changanassery, wherein he was prosecuted for the offence punishable under Sec.138 of the Negotiable Instruments Act on the basis of the complaint filed by the respondent. After trial the lower court found the petitioner was not guilty of the offence punishable under Sec.138 of the Negotiable Instruments Act, acquitted and set him at liberty, by judgment dated 27.1.1994. The respondent herein preferred Criminal Appeal No.470 of 1994 before this Court challenging the order of acquittal. This Court after hearing both sides, by judgment dated 5.2.1998 reversed the findings of the lower court, found the petitioner guilty of the offence punishable under Sec.138 of the Act and convicted and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs.3,000 in default of payment to undergo simple imprisonment for a period of one month. The petitioner has filed this petition to modify the sentence awarded by this Court after affording an opportunity to be heard regarding the question of sentence under Sec.482 of the Crl.P.C. 3. The counsel for the petitioner vehemently submitted that the petitioner was not heard by this Court before awarding sentence and the counsel for the petitioner did not get an opportunity to bring to the notice of this Court the provisions of Secs.360 and 361 of the Crl.P.C, and to consider whether the petitioner can be dealt with under those benevolent provisions of law. Therefore, according to him, in order to meet the ends of justice the benevolent provisions of Secs.360 and 361 of the Crl.P.C. or Sec.4 of the Probation of Offenders Act should be invoked and the sentence passed against the petitioner should be kept in abeyance during the period of probation that may be determined by this Court. 4. Therefore, according to him, in order to meet the ends of justice the benevolent provisions of Secs.360 and 361 of the Crl.P.C. or Sec.4 of the Probation of Offenders Act should be invoked and the sentence passed against the petitioner should be kept in abeyance during the period of probation that may be determined by this Court. 4. This petition is vehemently opposed by the respondent on the ground that no court is empowered to alter or review the sentence awarded except otherwise provided under Sec.362 of the Crl.P.C. and inherent powers of this Court under Sec.482 has absolutely no application to the facts of this case. 5. The counsel for the petitioner submitted that the fact that this Court has no power to review its findings is admitted and that Sec.362 of the Crl.P.C. empowers the court to alter or review the judgment only to correct a clerical or arithmetical error save as otherwise provided by the C.P.C. or by any other law for the time being in force. He also argued that Sec.42 of the Crl.P.C. saves the inherent power of the court to give effect to any order passed under the Crl.P.C. or to prevent abuse of the process of any court or otherwise to secure the ends of justice. According to him, the inherent power of this Court to secure ends of justice is not taken away or curbed by the provisions of Sec.362 of the Crl.P.C. he further argued that in this case, there is an omission on the part of this Court to take note of the statutory provisions contained in Secs.360 and 361 of the Crl.P.C. or there is failure on the part of the counsel for the petitioner to bring those statutory provisions to the notice of this Court and therefore, the petitioner only seeks to bring the judgment of this Court in consonance with the statutory requirement and to do justice without altering the sentence by invoking the benevolent provisions of Secs.360 and 361 of the Crl.P.C. He also argued that such a course will only secure the ends of justice without any violence to Sec.362 of the Crl.P.C. which is empowered under Sec.482 of the Crl.P.C. 6. In the decision in State of Orissa v. Ram Chander State of Orissa v. Ram Chander , A.I.R. 1979 S.C. 87 the Supreme Court has observed as follows: “The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or except in accordance with the provision of the Criminal Procedure Code. The provisions of Sec.561-A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code.” 7. In the decision in Simrikhia v. Dolley Mukherjee Simrikhia v. Dolley Mukherjee , A.I.R. 1990 S.C 1605 the Supreme Court has observed as follows: “4. Sec.362 of the Code expressly provides that no court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arthimetical error save as otherwise provided by the Code. Sec.482 enable the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers, however, as much are controlled by principle and precedent as are its express powers by statute. If a matter is covered by an express letter of law, the court cannot give a go by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.” 8. In the decision in Smt.Sooraj Devi v. Pyare Lal and another Smt.Sooraj Devi v. Pyare Lal and another , A.I.R. 1981 S.C. 736 the Supreme Court has observed as follows: “Pyare Lal disputes that the order is not binding on her and that she is entitled to the right in the property claimed by her. having considered the matter, we are not satisfied that the controversy can be brought within the description clerical or arithmentical error. A clerical or arithmetical 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 on argument or disputation. A clerical or arithmetical 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 on argument or disputation. An arithmentical error is a mistake of calculation, and a clerical error is a mistake in writing or typing.” In the same judgment it is further observed as follows: “It is true that the prohibition in Sec.362 against the court altering or reviewing its judgment is subject to what is otherwise provided by this Code or by any other law for the time being in force’. Those words, however, refer to those provisions only where the court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the court is not contemplated by the saving provision contained in Sec.362 and, therefore, the attempt to invoke that power can be of no avail.” 9. In the decision in Naresh v. State of U.R Naresh v. State of U.R , A.I.R. 1981 S.C. 1385 the Apex Court has observed as follows: “The High Court was wholly wrong in altering the judgment pronounced by them disposing of the criminal appeals. That was clearly in contravention of the provisions of Sec.362, Code of Criminal Procedure. What was worse, the High Court acted in purported exercise of the power to correct clerical mistakes when in fact there was none. The conviction under Sec.302, Indian Penal Code was perfectly correct and the conviction had been rightly affirmed by the High Court in the first instance. There was no occasion at all for the purported exercise of power to correct a clerical mistake and alter the conviction under Sec.302 to one under Sec.304, Indian Penal Code. 10. All the above authoritative rulings of the Supreme Court establish that this Court has no power to review the finding of guilt, conviction and sentence under Sec.362 of the Crl.P.C. as a clerical error or arithmetical error or under the inherent power conferred under Sec.482 of the Crl.P.C. 11. 10. All the above authoritative rulings of the Supreme Court establish that this Court has no power to review the finding of guilt, conviction and sentence under Sec.362 of the Crl.P.C. as a clerical error or arithmetical error or under the inherent power conferred under Sec.482 of the Crl.P.C. 11. As already noted, the vehement contention of the petitioner is that what the petitioner seeking in this case is only to bring the judgment in conformity with the statutory requirements by rectifying the omission of this Court to note the statutory provisions under Secs.360 and 361 of Crl.P.C. or the failure of the counsel for the petitioner to bring the provisions to the notice of this Court. It is true that this Court failed to note the provisions under Secs.360 and 361 of the Crl.P.C. nor the counsel for the petitioner brought those provisions of law to the notice of the court at the time of arguments. But that omission while pronouncing the judgment either on the part of this Court or on the Part of the counsel appearing on behalf of the petitioner will not empower the court to review or alter the finding regarding sentence entered by the court. The remedy of the petitioner lies in challenging the finding in appropriate proceedings before the appropriate forum. 12. The contention of the petitioner that by invoking the provisions of Sec.360 and 361 of the Crl.P.C, this Court will be doing justice without altering the sentence since if the benevolent provisions of Secs.360 and 361 of the Crl.P.C. are made applicable the sentence awarded will only by postponed without altering the sentence. Though this argument advanced by the counsel for the petitioner is very attractive and appealing, it cannot be accepted by this Court in the above petition preferred under Sec.482 of Crl.P.C. Application of the provisions of the Probation of Offenders Act or Secs.360 and 361 of the Crl.P.C. is a post-conviction and pre-sentencing Procedure. After the sentence of is awarded and the judgment having been pronounced, the sentence cannot be postponed. After pronouncement of the sentence, it can be interfered with only by the competent court. After the sentence of is awarded and the judgment having been pronounced, the sentence cannot be postponed. After pronouncement of the sentence, it can be interfered with only by the competent court. Therefore, the contention of the petitioner that the sentence awarded by this Court can be postponed by invoking the benevolent provisions of the Probation of Offenders Act or Secs.360 and 361 of the Crl.P.C. without doing violence to the provisions of Sec.362 of the Crl.P.C. is not sustainable. The above conclusion of mine is fortified by the decision of this Court in James v. State of Kerala James v. State of Kerala , (1989)1 K.L.T. 275 wherein a single Judge of this Court has observed as follows: “12. Application of the provisions of the Probation of Offenders Act is a post-conviction and presenting procedure: Release on due admonition under Sec.3 is a substitute for the sentence. Release on probation under Sec.4 or 6 is only postponement of the sentence after conviction and sometimes the sentence may not be exercised and the sentence is awarded and the judgment signed and pronounced, it could be altered only by any one of the methods allowed by law. That is possible only when the sentence is interfered with by a competent court or a direction for that purpose conies from above. When the sentence is in force an application to apply the provision of the Probation of Offenders Act cannot be entertained and considered.” I am in respectful agreement with the above observations made by the single judge regarding non-applicabiiity of the provisions of the Probation of Offenders Act after the sentence is awarded. 13. From the foregoing discussions it is clear that the above petition filed by the petitioner to afford him an opportunity of being heard on the question of sentence and modify the order of sentence is not sustainable under Sec.482 of the Crl.P.C. Hence this petition is dismissed.