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2000 DIGILAW 55 (KAR)

ANASUYA GANAPATI HEGDE v. STATE OF KARNATAKA

2000-01-18

V.BHASKARA RAO, V.GOPALA GOWDA

body2000
Y. BHASKAR RAO, CJ. ( 1 ) THIS Writ Petition of (Habeas Corpus) is filed by the petitioner who is the mother of detenue for issuing a writ of Habeas Corpus to the respondents to produce her son Atmendra and set him at liberty forthwith. ( 2 ) THE brief facts of the pase are that the accused is the son of the petitioner herein. A case in Crime No. 190/1986 was registered against the accused under Section 302 r/w Section 34 I. P. C. and under Section 27 of the Indian Arms Act, by the Sirsi Police Station. The said case was registered as CC No. 197/1987 on the file of the i Addl. JMFC, Sirsi. After committal, it was registered as S. C. No. 5/ 1987 on the file of the Sessions Judge, at Karwar. The Sessions court, after trial, acquitted him and another by its Judgment dated ( 3 ) 9. 1987. The State filed Criminal Appeal No. 17/1988 before this Court against the Judgment of the Sessions Court, Karwar. This court, after hearing the parties, reversed the judgment of the sessions Court and convicted the accused of the offence for which he was charged and sentenced him to undergo imprisonment for life for the offence under Section 302 IPC and further sentenced him to Rl for one year and to pay a fine of Rs. 200/- and in default to suffer further R. I. for two months for the offence under Section 27 of the Arms Act, by Judgment dated 23. 4. 1992. Assailing that, judgment, the accused filed an Appeal before the Supreme Court. In the meanwhile, he surrendered before the third respondent on 26. 5. 1992, in pursuance of the judgment of this Court convicting him for the offences and sentencing him to undergo life imprisonment and other sentences. Thereafter, he filed bail petition before the supreme Court. The Hon'ble Supreme Court, vide its order dated 27. 8. 1992 granted him bail and he was enlarged on bail. Thereafter, the Supreme Court dismissed the appeal confirming the judgment of this Court dated 23. 4. 1992. Against that judgment, the review petition was filed by the accused, which was also dismissed. Thereafter the Registrar of the Hon'ble Supreme Court, sent a certified copy of the formal order dated 31. 3. Thereafter, the Supreme Court dismissed the appeal confirming the judgment of this Court dated 23. 4. 1992. Against that judgment, the review petition was filed by the accused, which was also dismissed. Thereafter the Registrar of the Hon'ble Supreme Court, sent a certified copy of the formal order dated 31. 3. 98 of the Supreme Court and after receipt of the same by the Sessions Court, Karwar the arrest warrant was issued against the accused and he was arrested and now he is in jail undergoing imprisonment in pursuant to the judgment of this Court passed in the State Appeal. 2. This Habeas Corpus petition is fi. led by the mother of the accused contending therein that the arrest warrant is not issued as contemplated under Section 418 of the Cr. P. C. by the convicting and sentencing Court. Therefore, the arrest warrant issued by the sessions Judge, arresting him and putting him in the custody is illegal and therefore it has violated the liberty and life of the accused as envisaged in Article 21 of the Constitution of India. Therefore, it is contended that the accused is entitled to be set at liberty forthwith. 3. The learned Counsel Mr. C. V. Nagesh for the petitioner has contended that as provided under Section 418 Cr. P. C. , the convicting and sentencing Court, namely this Court can only issue the arrest warrant and nc other Court can issue the same for arresting the accused and detaining him in the Jail to undergo the sentence as awarded by this Court in its Judgment. Therefore, the arrest warrant now issued by the Sessions Judge, Karwar in pursuant to the communication received from the Registrar of the Supreme Court after dismissal of the Appeal filed by the accused is illegal and void. He has secondly contended that while the Hon'ble Supreme Court of India has disposed of the appeal, neither in the operative portion of the Judgment nor in the course of the judgment, has observed that the bail granted to the accused is cancelled by the Apex Court as required under Section 441 of the Cr. P. C and he was further directed to surrender or be taken to the custody by the third respondent to undergo the sentence awarded in the Appeal by this court. P. C and he was further directed to surrender or be taken to the custody by the third respondent to undergo the sentence awarded in the Appeal by this court. When there is no specific order passed to that effect by the hon'ble Supreme Court, the same cannot be now substituted by the sessions Judge, in the Judgment, which amounts to altering the judgment of the Supreme Court, which is not within the purview of the sessions Court and therefore the action of the Sessions Judge in issuing the arrest warrant against the accused and detaining him in the jail to undergo imprisonment is without jurisdiction. Since the hon'ble Supreme Court of India has not cancelled the bail bonds and directed the accused to surrender to the Court for undergoing the sentence awarded against him, there is no other provision in the Cr. P. C. providing that the accused should be taken into custody or put him in jail by the Sessions Court, to undergo the sentence awarded, as such, he is entitled to be set at liberty immediately, as the arrest of the accused and detaining him in the fourth respondent jail is illegal and unlawful. Therefore the learned Counsel for the petitioner would submit that the lacuna in the judgment of the supreme Court cannot be filled either by the Registry of. the Supreme court or the Sessions Court. Therefore, the learned Counsel for the petitioner has prayed for allowing the Writ Petition by granting the reliefs as prayed. ( 4 ) THE learned State Public Prosecutor has contended that this Court has reversed the judgment of the Trial Court and convicted and sentenced the accused. After the Judgment was passed by this court, the accused has surrendered himself before the Sessions court, Karwar. When the accused himself surrendered, the question of not following the procedure as contemplated under Section 418 cr. P. C by this Court has not vitiated the Judgment. After surrender by the accused pursuant to the judgment of this Court, in reversing the acquittal, he was released on bail by the order of. the Hon'ble supreme Court of India, in the Appeal filed by him against the judgment of this Court. P. C by this Court has not vitiated the Judgment. After surrender by the accused pursuant to the judgment of this Court, in reversing the acquittal, he was released on bail by the order of. the Hon'ble supreme Court of India, in the Appeal filed by him against the judgment of this Court. The Hon'ble Supreme Court of India granted the bail to the accused person pending disposal of the appeal filed by him and as soon as the appeal is disposed of, the bail granted by the Apex Court has automatically cancelled. Therefore the submission of the learned Counsel for the petitioner that the bail order should have been cancelled by the Supreme Court, when the appeal was dismissed, is not tenable in law for the reason that merely because the bail bonds are not cancelled by expressly stating so in the judgment by the Supreme Court it cannot be said that the accused was continued to be on bail as the hail bonds executed by him and his sureties are not cancelled. Since the bail was granted during the pendency of the appeal, the same in law expired after the dismissal of the appeal and consequently the bail bonds are also cancelled automatically. Under Rule 5 of the Hon'ble Supreme court Rules, 1966, the Registrar is empowered to draft the decree and send it for execution to the executing Court. If Rules 5 and 7 are read together it is manifest that every decree passed or order made by the Supreme Court shall be drawn by the Registrar and signed by him or Deputy Registrar with the seal of the Court. Therefore, by reading these two rules together, it would make very clear that the Registrar of the Supreme Court is empowered to draw the decree and communicate the same to the concerned Court. Therefore there is nothing wrong in the order communicated by the registrar of the Supreme Court to the Sessions Court, Karwar, as the same is in conformity with the rules of the Supreme Court and in accordance with law. Therefore there is nothing wrong in the order communicated by the registrar of the Supreme Court to the Sessions Court, Karwar, as the same is in conformity with the rules of the Supreme Court and in accordance with law. ( 5 ) IN view of the above legal contentions urged by the learned Counsel for the petitioner the important question of law that arises in this case for consideration of this Court is whether the liberty and life of the accused person is deprived and life of the accused person is deprived of by not following the procedure laid down in law as contended by the petitioner as the accused was arrested pursuant to the arrest warrant issued by the Sessions Court, Karwar, after receipt of the order communicated by the Registrar of the Supreme court, informing the result of the Criminal appeal filed by the accused person in the Supreme Court. ( 6 ) THE admitted facts as stated supra show that the accused was acquitted by the Sessions Court, Karwar, in the case in which he was tried for various offences charged against him. This Court, in the State appeal, reversed the acquittal order passed by the sessions Court and convicted the accused person for the offences of which he was charged and sentenced him as stated earlier. After the judgment of this Court, he surrendered before the Sessions Court, karwar, and he was in jail until he was directed to be released by the Supreme Court order to enlarge him on bail on his application. Therefore, once the accused himself surrendered before the Sessions court to undergo sentence imposed on him pursuant to the Judgment rendered by this Court in the State Appeal, the question of foffowing the procedure laid down under Section 418 Cr. P. C. does not arise. Therefore, the contention that this Court should have issued the arrest warrant against the accused by following the procedure laid down under Section 418 Cr. P. C. after setting aside the Judgment of the Sessions Court as contended by the learned Counsel for the petitioner is not tenable in law for the reasons recorded by us in this paragraph. Therefore, the contention that this Court should have issued the arrest warrant against the accused by following the procedure laid down under Section 418 Cr. P. C. after setting aside the Judgment of the Sessions Court as contended by the learned Counsel for the petitioner is not tenable in law for the reasons recorded by us in this paragraph. ( 7 ) THE accused himself filed an appeal before the Supreme Court against the Judgment of this Court and the Apex Court has admitted the appeal and later, on moving the bail application by the accused he was granted bail. The operative portion of the bail order granted by the Apex Court reads as follows :"this Court doth order that pending the hearing and final disposal by this Court of the appeal above mentioned, the petitioner/ appellant above named viz. , Atmendra, son of Ganapathi Hegde, be released on bail on his executing a bond for a sum of rs. 15,000/- (Rupees fifteen thousand) only with two sureties of the like sum to the 'satisfaction of the Sessions Judge, Uttara kannada at Karwar (Karnataka)". Thereafter, the Supreme Court has confirmed the conviction and sentence imposed by this Court. The relevant operative portion of the Judgment for appreciating and considering the contentions urged by the petitioner's Counsel are extracted as hereunder : ". . . It is thus clear that the High Court considered the probability of accidental fire as spoken to by the appellant in his statement under Section 313 Cr. P. C. and which was sought to be supported by evidence of P. W. 14 and arrived at the conclusion not only with regard to testing its operation but also noting the physical features of the gun. We find no illegality in this approach of the high Court. The judgment under appeal warrants no interference. The appeal, therefore, fails and it is accordingly dismissed. " by reading the operative portion of the judgment of the Hon'ble supreme Court, it makes it very clear that the appeal filed by the appellant is dismissed confirming the judgment of the High Court. Bail granted by the Supreme Court in favour of the accused was only till pending hearing and disposal of the appeal by the Supreme court, therefore the bail order granted in favour of the accused continued only upto disposal of the appeal by the Apex Court. Bail granted by the Supreme Court in favour of the accused was only till pending hearing and disposal of the appeal by the Supreme court, therefore the bail order granted in favour of the accused continued only upto disposal of the appeal by the Apex Court. As soon as the appeal is disposed of, it is deemed that the bail granted by the Supreme Court automatically expired. Merely because the cancellation of bail bonds are not expressly mentioned in the judgment of the Supreme Court, it cannot be said that the bail granted by the Supreme Court in favour of the accused has continued, even after disposal of the appeal. Once the bail granted to the accused by the Supreme Court was expired by disposal of the appeal filed by him by the Supreme Court, it does not survive further. ( 8 ) THE next question that is raised by the petitioner is whether the registry of the Supreme Court can issue an order in the form of decree. To appreciate this contention, it is relevant to extract Rules 5 and 7 of Order XIII of the Supreme Court Rules, as amended upto 1997, which reads as follows :"5. Every decree passed or order made by the Court shall be drawn up in the Registry and be signed by the Registrar or Deputy registrar and sealed with the seal of the Court and shall bear the same date as the judgment in the suit or appeal. 6. xxx xxx xxx 7. Orders made by the Court in other proceedings shall be transmitted by the Registrar to the judicial or other authority concerned to whom such orders are directed, and any party may apply to the Judge in chambers that any such other, including an order for payment of costs, be transmitted to any other appropriate court or other authority for enforcement. "by reading the above rules, it is manifest that the Registry has been empowered by the rule making authority to draft a decree or order and communicate the same to the concerned Courts and authorities. In the present case, the Trial Court is the Sessions Court which tried the accused for offences charged against him and the Judgment of the Supreme Court has to be communicated to the concerned court, according to the Rules, and accordingly the same is communicated to the Sessions Court, Karwar. In the present case, the Trial Court is the Sessions Court which tried the accused for offences charged against him and the Judgment of the Supreme Court has to be communicated to the concerned court, according to the Rules, and accordingly the same is communicated to the Sessions Court, Karwar. For the reasons stated supra, there is nothing illegal on the part of the second respondent in communicating the same to the Sessions Court for further action in this regard. Therefore, we are not able to agree with the submissions made by the learned Counsel for the petitioner in this regard. ( 9 ) THE learned Counsel for the petitioner has placed reliance on the judgment of the Calcutta High Court reported in 1901 ILR (Calcutta) 286 (FB) for the proposition that the convicting Court alone can issue warrant of arrest against the convict as contemplated under section 418 Cr. P. C. There cannot be any doubt regarding this proposition of law laid down in the said case. The Calcutta High court in that case was deciding a similar question which arose under section 183 Cr. P. C. 1898, corresponding to the present Section 418 cr. P. C. But, as observed by us supra, when the accused himself surrendered before the Sessions Court after the Judgment of this court in convicting and sentencing him by this Court, after reversing the Sessions Court judgment of acquittal, the question of following the procedure as contemplated under Section 418 Cr. P. C. as contended by the petitioner's Counsel does not arise. The facts of that case are not apposite to the facts of the present case, therefore the above said decision does not render any assistance to the petitioner. ( 10 ) THE learned Counsel has further contended that in the Judgment of the Supreme Court, there is no specific mention regarding the cancellation of the bail bonds or directing the convict to surrender or to take him into custody by the Sessions Court. The learned Counsel for the petitioner in support of the above said submission has placed reliance on the following Judgment of the apex Court to demonstrate that there should be a specific order of cancelling bail or to surrender or to take the convict into custody viz. The learned Counsel for the petitioner in support of the above said submission has placed reliance on the following Judgment of the apex Court to demonstrate that there should be a specific order of cancelling bail or to surrender or to take the convict into custody viz. , RAMESH BABULAL DOSHI vs STATE OF GUJARAT awadesh AND ANOTHER vs STATE OF MADHYA PRADESH; chacko ALIAS JACOB vs STATE OF KERALA. The observations made by the Hon'ble Supreme Court in those cases cannot be disputed. But, in the present case, bail was granted in favour of the accused person pending hearing and final disposal of the Appeal. Therefore, the bail order of the Supreme Court should be read alongwith the main Judgment in the appeal, wherein the Appeal of the accused person is dismissed. The facts of those cases are entirely different and therefore the ratio laid down in those Judgments are not applicable to the facts of the present case. ( 11 ) THE learned Counsel for the petitioner has further contended that, when there is lacuna in the judgment of the Supreme Court, the same cannot be filled by the Registry oi the Supreme Court or the Sessions Judge as it amounts to altering the judgment as there is a bar under Section 316 Cr. P. C. either to alter or review the judgment by the same Court or the appellate Court. In our view, there is no alternation of the judgment of the Supreme Court. The bail order and the main order in the appeal make it very clear that bail was granted in favour of the accused only pending the hearing and final disposal of the appeal filed by him. The Supreme Court has limited the bail order until disposal of the appeal filed by him. Therefore, the Registry drawing the decree and communicating it to the Sessions Court regarding the Judgment oi the Supreme Court passed in the appeal and the Sessions Judge issuing the warrant of arrest against the accused does not amount to either altering or reviewing the judgment of the Supreme Court as contemplated under section 316 Cr. Therefore, the Registry drawing the decree and communicating it to the Sessions Court regarding the Judgment oi the Supreme Court passed in the appeal and the Sessions Judge issuing the warrant of arrest against the accused does not amount to either altering or reviewing the judgment of the Supreme Court as contemplated under section 316 Cr. P. C. In support of the above said proposition of law the learned Counsel for the petitioner has placed reliance on the decision of Bombay High Court in SHIVAJI NARAYAN SHINDE vs state OF MAHARASTRA4 wherein the Court has held that the nature of imprisonment to be undergone by an accused must be specified in the judgment itself and the same cannot be altered unless recourse to appeal or revision proceedings is taken to and the benefit accrued to the accused cannot be taken away. The facts of that case are entirely different from the facts of the present case. Therefore the reliance placed upon the above said case by the learned Counsel for the petitioner does not render any assistance to the petitioner. Hence the said contention of the petitioner also must fail. ( 12 ) FOR the reasons stated supra in this Judgment, we are of the view that the procedure as contemplated under Cr. P. C, and under the Supreme Court Rules have been followed in this case and thereby there is no deprivation of the liberty of the accused, the son of the petitioner in this case. We do not see any merit in the Writ petition. Accordingly Writ Petition is dismissed. No order as to costs. --- *** --- .