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2004 DIGILAW 1429 (AP)

Mahesh Manchandar Garge v. State Of A. P.

2004-11-26

P.S.NARAYANA

body2004
( 1 ) (PETITION under Section 482 of Crl. P. C. praying that in the circumstances state in the affidavit filed therewith, the High Court will be pleased to grant enlargement of time, passed in Crl. A. No. 815/99 dt. 23-11-2004 for paying the fine amount to enable preferring the Appeal before the Honble Supreme Court.) a. 2 to A. 5 in Criminal Appeal No. 815 of 199 filed present Criminal M. P. No. 6694 of 2004 under Section 482 of the Criminal Procedure Code, herein after referred to as Code for the purpose of convenience, praying for enlargement of time for payment of fine amount to enable the petitioners/a. 2 to A. 5 to prefer an appeal before the Honble Supreme Court to challenge the dismissal of the appeal. ( 2 ) SRI Ravindranath, the learned Counsel representing the petitioners-appellants-A. 2 to A. 5 would submit that the counsel for these petitioners had not mentioned about non-payment of fine amount at the time of bail and the other relevant facts relating to the payment of fine amount. The learned counsel also submits that in view of the said lapse, the Judgment was delivered by this Court wherein the findings were confirmed under the modifying the sentence. In view of the same, appropriate orders may have to be passed rectifying the said mistake which had crept in the judgment. The learned Additional Public Prosecutor based the same on the ground that this would amount to alternatives of judgment which is impermissible under section 326 of the Code and hence, application itself is not maintainable. ( 3 ) HEARD both the Counsel. This Court in Criminal Appeal No. 794, 815 and 1143 of 1999 made Common Judgment and the operative portion of the judgment reads as here under: in view of the facts and circumstances and taking into consideration of the evidence available on record, the sentence of imprisonment imposed as against Accuse Nos. 2 and 3 is modified to a period of five (5) years and as far as Accused No. 1 is concerned, he is sentenced to undergo R. 1 for 2 years and likewise Accused Nos. 4 and 5 also are sentenced to undergo R. 1 for a period of three (3) years. The further sentence of imposition of fine of Rs. 5,000/- in default to undergo S. I. for one year is hereby confirmed. 4 and 5 also are sentenced to undergo R. 1 for a period of three (3) years. The further sentence of imposition of fine of Rs. 5,000/- in default to undergo S. I. for one year is hereby confirmed. ( 4 ) EXCEPT the modification of all the sentences, in all other particulars, the findings of the learned Judge are hereby confirmed. The appeal shall stand dismissed subject to afore said modification. Section 326 of the Code dealing with the Court not to alter judgment reads as follows: court not to alter Judgment: Save as otherwise provided by this Code or by any other law for the time in force, no Court, when it has signed its judgment or final order dispensing of a case, shall alter or review the same except to correct a clerical or arithmetical error ( 5 ) AN attempt was made by the learned Counsel to bring the present application under Section 482 of the Code. Section 482 of the Code dealing with the saving of inherent powers of High Court reads as hereunder: 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 affect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to the ends of justice. In the present case, it had been contended by the learned counsel for the petitioners that there is a mistake on the part of the counsel in bringing certain facts to the notice of the Court and hence, the necessary clarification relating to the payment of fine amount had not been specified in the judgment. Virtually, what is prayed for in the present application is for the alteration of the sentence which would amount to judicial determination. In the light of the clear language employed in Section 362 of the Code, the same is impermissible. ( 6 ) IN Bangaru Reddy and another v. State ( AIR 1959 AP 95 ) while dealing with the aspect of clerical error under 1898 Code, the learned single Judge of this Court held:- a Criminal Court becomes functus officio as soon as it pronounces its judgment, even though it may be imperfect or deficient in law. ( 6 ) IN Bangaru Reddy and another v. State ( AIR 1959 AP 95 ) while dealing with the aspect of clerical error under 1898 Code, the learned single Judge of this Court held:- a Criminal Court becomes functus officio as soon as it pronounces its judgment, even though it may be imperfect or deficient in law. Under S. 369, when once the Court sings its judgment it has no power to alter or review excepting correcting clerical error. A clerical error is an error, which can be explained only by considering it as a slip or mistake. Apart from correction of such errors as are popularly known as purely clerical, supply of omissions of consequential orders too may be permissible in certain cases as they are in the nature of clerical omissions; but certainly such omissions as would demand judicial consideration or determination are beyond the scope of that term. What is the offence for which the accused should be convicted and what should be the sentence therefore, are matters for judicial determination and omissions of this kind can never be construed as clerical errors. ( 7 ) IN State of Orissa v. Ram Chander Agarwala etc. , (1979 SC 87) the apex Court observed that once a judgment 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 the judgment as there is no provision in the Code which would enable the High Court to review the same or to exercise revisinal jurisdiction. ( 8 ) IN Smt. Sooraj Devi, Appellant V. Pare Lal and another ( AIR 1981 SC 736 ) while dealing with Sections 362 and 482 of the Code of clerical error or arithmetical error, the Apex Court at paragraphs 4 and 5 held as hereunder: the sole question before us is whether the High Court was right in refusing to entertain Criminal Miscellaneous Application No. 5127 of 1978, on the ground that it had no power to review its order dated 1st September, 1979, Section 362 of the Code of Criminal Procedure declares; 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. ( 9 ) IT is apparent that what the appellant seeks by the application is not the correct of a clerical or arithmetical error. What she desires is a declaration that the High Court order dated 1st September, 1970, does not affect her rights in the house property and that the direction to restore possession to Pyare Lal is confined to that portion only of the house property respecting which the offence of trespass was committed so that she is not evicted from the portion in her possession. The appellant, in fact, asks for adjudication that the right to possession alleged by her remains unaffected by the order dated 1st September, 1970. 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, wear not satisfied that the controversy can be brought within the description clerical or arithmetical 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 fact of the record and does not depend for its discovery on argument or disputation. An arithmetical error is a mistake of calculation, and a clerical error is a mistake in writing or typing. Master Construction Co. (P) Ltd. V. State of Orissa (1966) 3 SCR 99 : ( AIR 1966 SC 1047 ). An arithmetical error is a mistake of calculation, and a clerical error is a mistake in writing or typing. Master Construction Co. (P) Ltd. V. State of Orissa (1966) 3 SCR 99 : ( AIR 1966 SC 1047 ). ( 10 ) THE appellant points out that he invoked the inherent power of the High Court saved by Section 482 of the Code and that notwithstanding the prohibition imposed by Section 362 the High Court had power to grant relief. Now it is well settled that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. Sankatha Singh v. State of U. P. AIR 1962 SC 1208 . It is true that the prohibition in Section 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 authorized 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 Section 362 and, therefore, the attempt to invoke that power can be of no avail. ( 11 ) IN Hari Singh Mann v. Harbhajan Singh Bajwa and others (AIR 2001, SC 43) while dealing with Sections 362 and 482 of the Code, the Apex Court at paragraphs 8, 9 and 10 held as hereunder: we have noted with disgust that the impugned orders were passed completely ignoring the basic principles of criminal law. No review of an order is contemplated under the Code of Criminal Procedure. After the disposal of the main petition on 7-1-1999, there was no lis pending in the High Court wherein the respondent could have filed any miscellaneous petition. The filing of a miscellaneous petition not referable to any provision of Code Criminal Procedure or the rules of the Court cannot be resorted to as a substitute of fresh litigation. The record of the proceedings produced before us shows that directions in the case filed by the respondents were issued apparently without notice to any of the respondents in the petition. Merely because the respondent No. 1 was an Advocate, did not, justify the issuance of directions at his request without notice of the other side. The record of the proceedings produced before us shows that directions in the case filed by the respondents were issued apparently without notice to any of the respondents in the petition. Merely because the respondent No. 1 was an Advocate, did not, justify the issuance of directions at his request without notice of the other side. The impugned orders dated 30th April, 1999 and 21st July, 199 could not have been passed by the High Court under its inherent power under Section 482 of the Code of the Criminal Procedure. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the Court. ( 12 ) THERE is no provision in the Code of Criminal Procedure authorizing the High Court to review the Judgment passed earlier in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. This Court in State of Orissa v. Ram Chander Agarwala, AIR 1979 SC 87 : (1979 Crl. L. J. 462) held (Para 20 of AIR Crl LJ) before concluding we will very briefly refer to cases of this Court cited by counsel on both sides, 1958 SCR 1226 : AIR 1958 SC 376 : (1958 Cri LJ 701) relates to the power of the High Court to cancel bail. The High Court took the view that under S. 561 of the Code, it had inherent power to cancel the bail, and finding that on the material produced before the Court it would not be safe to permit the appellant to be at large cancelled the bail, distinguishing the decision in 72 Ind App 120: AIR 1945 PC 94: (1945 (46) Cri LJ 62) (supra) and stated that the Privy Council was not called upon to consider the question about the inherent power of the High Court to cancel bail under S. 561a. In Sankatha Singh v. State of U. P. (1962) Supp (2) SCR 871: AIR 1962 SC 1208 : (1962 Cri LJ 288) this Court held that S. 369 read with S. 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a Court. In Sankatha Singh v. State of U. P. (1962) Supp (2) SCR 871: AIR 1962 SC 1208 : (1962 Cri LJ 288) this Court held that S. 369 read with S. 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a Court. The accused applied before a succeeding Sessions Judge for a re-hearing of an appeal. The learned Judge was of the view that the appellate Court had no power to review or restore an appeal which has been disposed of. The Supreme Court agreed with the view that the appellate Court had no power to review or restore an appeal. This Court, expressing its opinion that the Sessions Court had no power to review or restore an appeal observed that a judgment, which does not comply with the requirement of S. 367 of the Code, may be liable to be set aside by a superior Court but will not give the appellate Court any power to set it aside and re-hear the appeal observing that Section 369 read with S. 424 of the Code makes it clear that the appellate Court is not to alter or review the judgment once signed except for the purpose of correcting a clerical error. Reliance was placed on a decision of this Court in Supdt. And Rememberancer of Legal Affairs W. B. v. Mohan Singh, AIR 1975 SC 1002 : (1975 Cri LJ 812) by Mr. Patel learned Counsel for the respondent herein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision instead of supporting the respondent clearly lays down, following Chopras case AIR 1955 SC 633 : (1955 Cri LJ 1410) (Supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court an appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of S. 561a of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code. ( 13 ) SECTION 362 of the Code mandates 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 arithmetical error. The Section is based on an acknowledged principle of law that once a mater is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. The reliance of the respondent on Talab Haji Hussains case (AIR) 1958 SC 376: 1958 Cri LJ 71) (supra) is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561a (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7-1-1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment. ( 14 ) AT any stretch of imagination, it cannot be said that it is only a mistake or clerical error but this is a matter concerned with the judicial determination and hence, any order making alteration separate for would definitely amount to alteration of judgment as such which is impermissible. The similar view was expressed in Bhaskaran, etc. v. State (1978 Crl. L. J. 738), Mulaim Singh v. State (1974 Crl. L. J. 1397 ). ( 15 ) IT is no doubt true that the beginning portion of section 362 of the Code reads save as otherwise provided by this Code or by any other law for the time being in force. It is also no doubt true that there are certain other provisions where in suitable orders may be passed and in view of the same, it is specified Save as otherwise provided by this Code. In the light of the same, in Ram Iswar Chaudhary and others v. The State of Bihar (1986 Crl. L. J. 1366) it was held at para 14 as hereunder: save as otherwise provided by this Code or by any other law for the time being in force, no court, when it has singed its judgment or final order disposing of a case, shall alter or review the same, except to correct a clerical of arithmetical error. ( 16 ) CLERICAL error has been invariably extended to apply to an error apparent on face of instrument, record, indictment or information. Blacks Law Dictionary, Fifth Edition, Page 229 has taken from judicial pronouncements the meaning given to this expression and said, it may include errors, mistakes, or omissions by clerk, writer counsel or judge which are not the result of exercise of judicial function as also signature by judge to judgment which does not express judicial desire or intention. Blacks Law Dictionary, Fifth Edition, Page 229 has taken from judicial pronouncements the meaning given to this expression and said, it may include errors, mistakes, or omissions by clerk, writer counsel or judge which are not the result of exercise of judicial function as also signature by judge to judgment which does not express judicial desire or intention. Since as applied to judgment and decrees a mistake or omission by a clerk, counsel, judge or printer, which is not the result of exercise of judicial function is a clerk error, and indeed no judge shall pronounce a dead person guilty on the fact of specific provisions under S. 394 of the Code. I have no hesitation in holding that conviction of the deceased, Suryadeo Choudhary in the appeal is an error which can be corrected notwithstanding the bar provided under S. 362 of the Code. This apart, S. 482 of the Code says:- nothing in this Code shall be deemed to limit or affect the inherent power 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 otherwise to secure ends of justice. ( 17 ) IN order to give effect to the order of conviction recorded by a Bench of this Court against the petitioners, it is intended this Courts duty to take notice of the abatement. The counsel who represented the petitioners as also the deceased respondent, Suryadeo Choudhary, did not inform the Court about his death, unlike information given to the Court in the case of State of Maharashtra (1981 Cri L. J. 1284 (3) (supra ). The Code of Civil Procedure contains elaborate provisions as to when and how abatements may take effect and who may apply for setting aside abatement. The 1976 Amendment Act to the said Code has introduced responsibility upon the counsel representing the party to inform, about his or their death to the court, so that the heirs and legal representatives may be substituted. The Code of Criminal Procedure contains no such provision, except stating under S. 394 of the Code that the appeal shall finally abate on the death of the accused or on the death of the appellant, as the case may be. The Court has no means to know about the death or otherwise of the accused. The Code of Criminal Procedure contains no such provision, except stating under S. 394 of the Code that the appeal shall finally abate on the death of the accused or on the death of the appellant, as the case may be. The Court has no means to know about the death or otherwise of the accused. Then informed by the counsel about the death of the accused, it cannot, in its judicial discretion, proceed with the hearing of the appeal without recording abatement. If it is not informed about the death and it accordingly proceeds to decide and record its order, the error is not in its judgment but in the absence of the information by the counsel representing the party and in its ignorance about the death. The pronouncement against a dead person, as I have already noticed, in such a situation, is not act of judicial discretion but mistake due to clerical recalcitrance on the part of the parties, who alone could/can inform it about such a death. ( 18 ) THE other specific provisions of the Code had been taken into consideration while Division Bench of Patna High Court had arrived at the said conclusion. The learned counsel had not pointed out any such aspect in the present case. Hence, bar imposed by section 362 is clearly operative. It is needless to say when there is a specific bar imposed on the Court, the inherent under Section 482 of the Code also cannot be invoked, and in the light of the same, this Court is of the considered opinion that the present Criminal Miscellaneous Petition is devoid of merits and the same shall stand dismissed.