Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 41 (HP)

TRILOK SINGH v. STATE OF HIMACHAL PRADESH

2003-03-12

KAMLESH SHARMA, V.K.GUPTA

body2003
JUDGMENT V.K. Gupta, C.J.—While disposing of the present application filed under Section 362 of the Code of Criminal Procedure, we are concerned with two issues involved for consideration. First is relatable to the claim of the applicant for being paid the price of 94 trees as was fetched in auction and the second is with respect to the interest accrued on the aforesaid claim, because the amount has been lying in fixed deposit. 2. Shorn of the unnecessary details, suffice it to say that a Division Bench of this Court by judgment dated 28.4.1995 passed in Criminal Appeal No. 90 of 1985 while partly allowing the appeal of the applicant directed that out of the total auction amount of Rs. 1,07,000 for 212 trees, the applicant be proportionally paid the amount towards the price of 94 trees in the said auction. For ready reference, we quote hereinbelow the operative part of the aforesaid judgment, which reads thus : "In view of the foregoing reasons, present appeal is partly accepted and as a consequence thereof out of auctioned price of Rs. 1,07,000 (Rs. One Lac Seven Thousand) for 212 trees, be proportionally paid to the appellant for 94 trees only. This appeal stands accordingly disposed of." 3. Reading the judgment as a whole, the inescapable conclusion was that the Division Bench had declared that as far as 118 trees were concerned, they were felled from the State land, but 94 trees were felled from the land of the owner i.e. applicant and, therefore, on that basis the applicant was held entitled by the Division Bench to the payment of the price of these 94 trees. The error, which apparently crept into the calculation part was that the Division Bench observed that the amount of Rs. 1,07,000 was the auction money for the entire lot of 212 trees and apparently, therefore, out of this amount of Rs. 1,07,000, (on pro-data-basis), for 94 trees, the amount was to be calculated and paid to the applicant. As the subsequent events have shown this was a wrong calculation, a patent error apparent on the face of the record inasmuch as undoubtedly Rs. 1,07,000 was not the auction amount for the entire lot of 212 trees. The trees actually were sold in two lots, one fetching Rs. 1,07,000 and the other Rs. 57,500. As the subsequent events have shown this was a wrong calculation, a patent error apparent on the face of the record inasmuch as undoubtedly Rs. 1,07,000 was not the auction amount for the entire lot of 212 trees. The trees actually were sold in two lots, one fetching Rs. 1,07,000 and the other Rs. 57,500. Therefore, it becomes manifestly clear that as far as 94 trees and the entitlement of the petitioner to receive price of these 94 trees was concerned, the amount had to be calculated separately and it could not be calculated from out of Rs. 1,07,000 on proportionate basis from out of this amount. That is one part of the story. 4. Section 362 of the Code of Criminal Procedure reads thus: "Court not to alter judgment,—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 judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." 5. Undoubtedly, Section 362 (supra) clearly operates a bar to any Court altering or reviewing the judgment or final order disposing of a case but this bar does not operate with respect to two excepted areas, namely, to correct a clerical or arithmetical error. On first impression we thought that this application was not maintainable in the sense that the errors being pointed out by the learned Counsel for the petitioner would not fall in the category of "clerical" or "arithmetical" errors, but on closer scrutiny it was revealed to us that the errors mentioned above with respect to the amount of Rs. 1,07,000 would definitely fall either in the category of a clerical error or an arithmetical error inasmuch as, undoubtedly, the Division Bench which indicated the figure of Rs. 1,07,000 was in error in holding and saying that this amount represented the entire sale price of 212 trees, whereas, in fact this amount represented the sale price of only 118 trees. Such an error, in our considered opinion, would fall in the category of clerical error or arithmetical error and thus falling in the excepted areas, the Court would have the jurisdiction to correct or alter the judgment to the aforesaid limited extent to correct and rectify the aforesaid error. Such an error, in our considered opinion, would fall in the category of clerical error or arithmetical error and thus falling in the excepted areas, the Court would have the jurisdiction to correct or alter the judgment to the aforesaid limited extent to correct and rectify the aforesaid error. As we shall see later on, the same principle would apply with respect to the grant of interest to the petitioner because keeping the amount in fixed deposit cannot disentitle the petitioner from receiving the benefit of the interest accrual on the share of the principal amount. 6. In so far as the applicants claim for interest is concerned, we have been taken through the impugned order passed by the learned Special Judge on 29.9.2001 in which he has, while dealing with the claim of the applicant, for payment of interest held that even though in the aforesaid Division Bench judgment, this Court did not pass any specific order regarding the payment of interest, but, according to the learned Special Judge the intention of this Court is apparent and that it can safely be inferred that this Court had ordered the payment of interest in favour of the applicant. The following observations made by the learned Special Judge in the aforesaid order are apposite and we quote: "It appears that no order regarding the payment of interest has been passed by the Honble High Court of H.P., but the intention is apparent and it can safely inferred that the Honble High Court has been pleased to order the payment of interest on the proportionate auctioned price of 94 trees in favour of the applicant. The proportionate auctioned price of 94 trees belongs to the applicant, hence the applicant is entitled for the interest accrued thereon. The proportionate auctioned price of 94 trees as admitted by the learned Special PP and learned counsel for the applicant comes to Rs. 47,443 hence the applicant is entitled for the withdrawal of proportionate auctioned price of 94 trees along with interest accrued thereon upto date." 7. The proportionate auctioned price of 94 trees as admitted by the learned Special PP and learned counsel for the applicant comes to Rs. 47,443 hence the applicant is entitled for the withdrawal of proportionate auctioned price of 94 trees along with interest accrued thereon upto date." 7. As far as the aforesaid observations of the learned Special Judge are concerned, we have to record that the learned Special Judge erroneously made, these observations, because a plain reading of the Division Bench judgment dated 25.4.1995 very clearly suggests that the Division Bench did not at all either by necessary implication or even implicitly suggest that the applicant was entitled to the payment of interest. Actually, we are surprised to note the tenor of the Special. Judges order where he tries to gather and infer the intention of this Court even when this Courts judgment is totally silent on the question of payment of interest to the applicant. We do not approve of the aforesaid observations of the learned Special Judge. 8. However, in so far as the claim of the applicant to receive interest is concerned, even though the Division Bench judgment did not pass any order with respect to such claim, what has been told to us at the Bar today is that the auction amount was kept in fixed deposit all these years and has been lying in fixed deposit uptil date. Had the auction amount not been kept in fixed deposit and because the Division Bench had not ordered the payment of interest to the applicant, we would not have passed any order binding the State with payment of interest to the applicant. But since, providentially and to the good fortune of the parties, the amount has been kept in fixed deposit for all these years and it has earned interest, the interest accrual must go to the benefit of the parties to the extent of their shares of the auction amount. We are saying so because we cannot permit one party to carry with it the entire interest accrual even with respect to that part of the principal amount, which belonged to the other party by virtue of the Division Bench judgment. 9. We are saying so because we cannot permit one party to carry with it the entire interest accrual even with respect to that part of the principal amount, which belonged to the other party by virtue of the Division Bench judgment. 9. Based on the aforesaid reasons therefor, while allowing this application we direct that : (a) The applicant shall be paid the auction price of 94 trees and to that extent the observation in the aforesaid Division Bench judgment with respect to the auction price being Rs. 1,07,000 for the entire lot of 212 trees shall stand modified; (b) If the amount in fact has been kept in fixed deposit all these years, both the parties, namely, the State and the applicant shall have the benefit of the interest accrued on the amount proportionally with respect to their shares. The application under Section 362 of the Code of Criminal Procedure being Cr.M.P. No. 8 of 2002 and the appeal of the State being Criminal Appeal No. 84 of 2002 are accordingly disposed of together with this common order. Cr. M.P. No. 278 of 2002 : In view of the disposal of the main petition, the present application shall stand disposed of. Order accordingly.