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2006 DIGILAW 360 (CAL)

MRITYUNJOY SADHUKHAN v. STATE OF WEST BENGAL

2006-06-20

ARUN KUMAR BHATTACHARYA

body2006
Arun Kumar Bhattacharya, JJ. ( 1 ) IN this application the petitioner has prayed for his release on probation under Secti )n 4 of the Probation of Offenders Act, 1958. ( 2 ) THE petitioner was convicted under Section 7 (1) (a) (ii) of Act X/55 for violation of the provisions of para 3 (1) of the West Bengal Pulses, Edible Oilseeds and Edible Oils (Dealer's Licensing) Order, 1978 and para 3 (2) of the West bengal Dec aration of Stocks and Prices of Essential Commodities Order, 1977 and sentent ed to suffer R. I. for one year and to pay fine of Rs. 1,000/- i. d. to r. I. for three months, by the learned Judge, Special Court (E. C. Act), Nadia on 17. 05. 88. In appeal being C. R. A. No. 229 of 1988 this Court upheld the order of convictioin on 22. 03. 2006, but on the submission of the learned Counsel for the appellant that it is his first offence and considering the age, reduced the sentence of substantive imprisonment to the minimum of R. I. for three months, sentence of fine being unaltered. ( 3 ) MR. Sanyal, learned Counsel for the petitioner, on referring the provisions of Sections 235 (2), 248 (2) and 255 (2) as also Sections 360 and 361 Cr. P. C. contended that dealing with an offender under Section 360 Cr. P. C. has been specifically provided in all the aforesaid three sections, the object being to avoid sending the first offender to prison for an offence which is not of a serious character. For not dealing with an accused under Section 360, special reasons are to be assigned under Section 361, and when this Court, Mr. Sanyal argued, like the trial Court failed to comply with the said provisions as it could do under sub-sections (4) and (5) of Section 360, it can now deal with it and such order of this Court will not amountunt to alteration or review of the judgment. Mr. Sanyal argued, like the trial Court failed to comply with the said provisions as it could do under sub-sections (4) and (5) of Section 360, it can now deal with it and such order of this Court will not amountunt to alteration or review of the judgment. Mr. Roy, learned counsel for the State, on the other hand, relying upon the case of Hah Singh mann v. Harbhajan Singh Bajwa, reported in 2001 SCC (Cr.) 113 submitted that had the matter been urged on behalf of the appellant at the proper stage, this court could either deal with it under sub-section (4) or sub-section (5) of Section 360 or remit the case to the Court below for considering the said provision but after disposal of the appeal, it is functus officio and cannot pass any order as it will amount to alteration or review of the judgment which is barred under Section 362 Cr P. C. ( 4 ) SECTIONS 36 ) and 361 Cr. P. C. cast a duty upon the Court to give weight to the correctional theory in penology. Those provisions confer a discretion on the Court which has 13 exercise it according to the circumstances of each case, and even where the conditions set out in Section 360 are fulfilled, the person convicted cannot, as of right, claim the benefit of the provisions. ( 5 ) NEVERTHELES, Section 362 prohibits all Courts from altering or reviewing its judgment when one it has signed, except to correct a clerical or arithmetical error. Once the High Court has signed its judgment it becomes functus officio and neither the Judg who signed the judgment nor any Judge of the High court Has any power to review, reconsider or alter it, except for correcting a clerical or arithmetical error. Section 362 Cr. P. C. embodies the principle of functus officio and as such a Court has no jurisdiction to review or alter its judgment or final order passed on merits. Section 362 Cr. P. C. embodies the principle of functus officio and as such a Court has no jurisdiction to review or alter its judgment or final order passed on merits. So, where after an accused has been convicted and sente[ ced and in appeal before High Court conviction has been upheld but the sentence has been reduced and such sentence is in force, a petition by the convict for release on probation requires addition of reason which would form a part of reasons already assigned, this will obviously amount to alteration of the judgment, not relating to clerical or arithmetical error which is not permissible. In this connection, the case of Hari Singh Mann (supra) may be referred to. Reference also may be made to the cases of State of Orissa v. Ram Chander Agarwala, reported in AIR 1979 SC 87 and Gangadhara Shetty v. State of Karnataka reported in 1989 Cr. LJ 2334. ( 6 ) ACCORDINGLY in the light of the above discussion, the present application being C. R. A. N. No 730/2006 be dismissed.