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2004 DIGILAW 1489 (AP)

K. Vijay Kumar v. State Of A. P.

2004-12-10

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) HEARD the counsel on record. ( 2 ) THIS Criminal Miscellaneous Petition is filed praying for a direction to the Court below to return the fine amount of Rs. 2,000/- paid by appellant in S. C. No. 3659 of 1993 on the file of the Sessions Judge, Anantapur dated 10-7-1997. ( 3 ) IT is stated that the petitioner is the appellant in Crl. A. No. 873 of 1997 before this court and the petitioner filed the said Appeal against the conviction and sentence imposed in S. C. No. 369 of 1993 on the file of the sessions Judge, Ananthapur. It is further stated that the said Crl. A. No. 873 of 1997 was disposed of by this Court on 10-9-2004 and the said Crl. A. was allowed and the acquittal was recorded by setting aside the conviction and sentence imposed against the appellant who is accused in S. C. No. 369 of 1993 on the file of the Sessions Judge, ananthapur. It is stated at the time of delivering the judgment, this Court did not direct the court below to return the fine amount of rs. 2,000/- which was paid on 10-7-1997 before the Sessions Judge, Ananthapur. Hence, the present application is moved under Section 482 of the Code of Criminal procedure (herein after referred as "code" for the purpose of convenience ). ( 4 ) WHEN appeal is allowed and acquittal is recorded, it is needless to say the conviction and sentence recorded were set aside by the appellate Court and as a consequence thereof, the appellant who had been successful, is entitled to the refund of fine amount, if any, paid by him. No separate order need be passed in this regard. At the best, it can be said to be an omission which is curable. Section 302 of the Code reads as under: "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. Section 393 of the Code deals with finality of judgment and reads as hereunder. Section 393 of the Code deals with finality of judgment and reads as hereunder. "judgments and orders passed by an appellate Court upon an appeal shall be final, except in the cases provided for in Sections 377,378, sub-section (4) of Section 384 or Chapter XXX: provided that notwithstanding the final disposal of an appeal against conviction in any case, the Appellate Court may hear and dispose of, on the merits. (a) an appeal against acquittal under section 378, arising out of the same case; or (b) an appeal for the enhancement of sentence under Section 377, arising out of the same case. "in Smt. Sooraj Devi v. Pyare Lal and another, the Supreme Court while deciding clerical and arithmetical error, held:"a clerical or arithmetical error is an error occasion by an accident 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 it s discovery on argument or disputation. An arithmetical error is a mistake of calculation, and a clerical error is a mistake in writing or typing. "in Bangaru Reddy v. The State while dealing with the aspect the learned Judge of this court observed. "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 signs 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. " ( 5 ) IT is needless to say, in the present matter, it is only an omission of consequential order. 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. " ( 5 ) IT is needless to say, in the present matter, it is only an omission of consequential order. At any stretch of imagination it cannot be said that the supply of omission in the present case, would amount to judicial determination, as there is no need of alteration of judgment. In Rami Reddi and Seshu Reddp, it was held:"when a Sessions Judge on appeal annuls the conviction of a Magistrate for want of jurisdiction and omits to order a retrial at the time under Section 284 of the Criminal Procedure Code, he is not precluded, by virtue of Section 464, from passing such an order subsequently. The order annulling the conviction in such a case does not amount to an acquittal. Where sanction is given for a prosecution for perjury and the case tried by an incompetent Court and the conviction quashed on appeal, a competent Court may retry the prisoner upon the subsisting sanction without any order of the Appellate Court by whom the conviction is quashed. "in re Subba Raidu it was held;"where an appellate Magistrate disposing of a criminal appeal fails to pass an order under Section 520 it will be open to his successor to do so. Inspite of S. 369, if there is only an accidental slip or omission. Though, an order under S. 517, Criminal Procedure code should be made at the time of passing judgment in the criminal case itself, an order made subsequently is not illegally or made without jurisdiction. "in Nafarchandra Palchowdhryv. Siddhartha krishna Mazumdar it was held;"under Section 148 (3) of the Criminal procedure Code the Magistrate who makes an order under S. 145, without any directions as to costs, has power to orderthe same subsequently, and such later order is not an alteration or review of his judgment in the original case within the meaning of S. 369 of the code. An application for costs, if not made when the judgment in the original case is delivered, should be presented within a reasonable time. What is a reasonable time depends on the circumstances of each case. An application for costs, if not made when the judgment in the original case is delivered, should be presented within a reasonable time. What is a reasonable time depends on the circumstances of each case. " ( 6 ) AS already observed supra, when criminal appeal is allowed by the appellate court and acquittal is recorded it is needless to say that the appellant would be entitled to refund of fine amount, if any paid and the mere omission to mention the same would not alter the situation in any way and no specific direction in this regard may be necessary. ( 7 ) IN the light of the reasons referred to supra it is clarified that the petitioner-appellant is entitled to the refund of fine amount, if any paid in this regard. ( 8 ) CRL. M. P. is disposed of accordingly.