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2006 DIGILAW 447 (MP)

SAMAH THAPU ABRAHAM v. STATE OF madhya PRADESH

2006-03-28

A.K.SHRIVASTAVA

body2006
( 1 ) BY this petition under Article 482, Cr. P. C. , the petitioner has sought the following relief:"it is, therefore, prayed that the judgment delivered by this Hon'ble Court on 18-5-2005 in Criminal Appeal No. 1381/1995 may kindly be modified/reviewed while exercising the jurisdiction under Section 482 read with Section 397/401, Cr. P. C. and the petitioner may kindly be released on probation under Section 360, Cr. P. C. under Section. 4/6 of the Probation of Offenders Act. " ( 2 ) THE petitioner was prosecuted under section 376/511, IPC. However, after concluding the entire trial, the learned Additional Sessions Judge came to hold that no offence under Section 376/511, IPC is made out. However, on the basis of the evidence placed on record, the trial Court came to the conclusion that the petitioner did commit offence under Section 354, IPC and eventually convicted him under the said offence and passed sentence to suffer R. I. of one year and fine of Rs. 1000/- failing which further R. I. of three months. ( 3 ) THE judgment of learned trial Judge was assailed by the petitioner by preferring an appeal before this Court which was registered as Criminal Appeal No. 1381/1995 and this Court by maintaining the conviction of the petitioner under Section 354, IPC, modified the jail sentence and directed to suffer R. I. of one month and the amount of fine was enhanced from Rs. l,000/- to Rs. 2000/ -. Hence this petition for review/modification has been filed by the present petitioner. ( 4 ) IT has been contended by Shri Verma, learned counsel for the petitioner, that the wife of the petitioner is seriously ill and she is suffering from "peronide Seizoprinia" since 2003 which, according to learned counsel, is a case of mental disorder. It has been further contended by learned counsel for the petitioner that the wife of the petitioner is required to be kept by tying her both the hands and legs and, therefore, the department, where the petitioner is serving, has given relaxation to the petitioner in attending the office regularly so that he may look after his wife properly. It has also been putforth by learned counsel that there is no male member in the family of the petitioner to look after his wife who is suffering from the abovesaid disease and she require 24 hours supervision. It has also been putforth by learned counsel that there is no male member in the family of the petitioner to look after his wife who is suffering from the abovesaid disease and she require 24 hours supervision. In these state of affairs, it has been contended by learned counsel for the petitioner that the powers conferred to this Court under Section 482, Cr. P. C. may be exercised and in place of sentence of one month R. I. , the petitioner may be directed to be released for the period he had already undergone. It has been further submitted that this Court, in the peculiar facts and circumstances, may direct to enhance the amount of fine because under Section 354, ipc, it is not necessary to pass jail sentence. In support of his contention, learned counsel has placed reliance on B. S. Joshi v. State of Haryana, (2003) 4 SCC 675 : (2003 Cri lj 2028 ). Mosst. Simrikhia v. Smkt. Dolley mukherjee alias Smt. Chabbi Mukherjee, air 1990 SC 1605 : (1990 Cri LJ 1599) and yeshu v. State of M. P. , 2001 (3) MPLJ 302 . ( 5 ) PER contra, Shri Samdarshi Tiwari, learned Govt. Advocate, argued that this court has already taken a lenient view and if that is the position, since the conviction of the petitioner h as been upheld under section 354, IPC, no further relief is required to be adopted. ( 6 ) AFTER having heard learned counsel for the parties, I am of the view that this petition deserves to be dismissed. ( 7 ) SECTION 362, Cr. P. C. is only a provision which throws sufficient light in order to alter the judgment which reads thus :"362. 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. "on bare perusal of this provision, it is revealed that as soon as the judgment is pronounced and the same is signed, this Court become functus officio. The judgment cannot be altered or reviewed except when there are certain clerical or arithmetical errors and only those errors can be corrected. "on bare perusal of this provision, it is revealed that as soon as the judgment is pronounced and the same is signed, this Court become functus officio. The judgment cannot be altered or reviewed except when there are certain clerical or arithmetical errors and only those errors can be corrected. The Court has no jurisdiction to set aside or review its own judgment which has already been signed and pronounced. ( 8 ) ON going through the judgment passed by this Court in the abovesaid criminal appeal, it is gathered that this Court categorically came to hold that the petitioner was rightly convicted for the offence under Section 354, IPC. However, looking to the facts and circumstances, the jail sentence was altered by this Court. The trial Court directed to suffer R. I. of one year which was diluted by this Court in the peculiar facts and circumstances and it was substituted to one month RI and amount of fine was enhanced from Rs. 1,000/- to 2000/ -. There appears to be no clerical or arithmetical error in the judgment passed by this Court and once this court has passed the judgment on its own merit, this Court became functus officio and quantum of jail sentence now cannot be either reviewed or modified. ( 9 ) THE decision of Yesu (supra) is tangentially off the point. On going through the said judgment, it is gathered that in that case the accused were convicted under section 392, IPC and were sentenced to suffer r. I. for two years each apart from the fine amount. The said conviction was challenged by filing the jail appeal but the Registry of this Court has wrongly registered the said jail appeal into criminal revision. This Court observed that there is no provision in law for filing criminal revision from the jail. The said criminal revision was listed but nobody was present to press that revision petition and this Court alter perusing the record, memorandum of revision and after hearing the State counsel, dismissed the same. In these facts and circumstances, this Court held that the procedure so adopted was defective. However, here the situation is altogether different. The said criminal revision was listed but nobody was present to press that revision petition and this Court alter perusing the record, memorandum of revision and after hearing the State counsel, dismissed the same. In these facts and circumstances, this Court held that the procedure so adopted was defective. However, here the situation is altogether different. In the present case, this court heard the learned counsel appearing for the petitioner at length while hearing, the criminal appeal on merit and ultimately this court came to the conclusion that petitioner has been rightly convicted under Section 354, IPC. This Court affirmed the conviction of the petitioner, but modified the sentence. ( 10 ) THE decision of B. S. Joshi (2003 Cri lj 2028) (supra) is not applicable in the present case, because in that case there was a compromise between the husband and wife in a case in which the husband and his family members were prosecuted under Section 498-A, IPC. In that situation, since the offence under Section 498-A was not com-poundable, a petition under Section 482, cr. P. C. was filed before the High Court and it was contended that since husband and wife wants to live peacefully, therefore, the prosecution may be quashed. In those facts and circumstances, the Supreme Court held that this Court can exercise the powers under section 482, Cr. P. C. Here the situation is not in like manner. Similarly, the decision of Mosst. Simrikhia (1990 Cri IJ 1599) (supra) is also not. applicable in the present case because that case pertains to summoning the accused persons on a private complaint. ( 11 ) THE provision of Section 362, Cr. P. C. can be invoked if there is only a clerical or arithmetical error. The judgment passed by this Court in Criminal Appeal No. 1381/1995 on 18-5-2005, cannot be allowed to be reviewed or modified. ( 12 ) THERE may be some merit in the submissions of learned counsel for the petitioner in regard to ailment of the wife of the petitioner but is is well settled in law that the law cannot be allowed to bend before the equity. Learned counsel for the petitioner then prayed that some time to deposit the enhanced amount of fine be extended. This prayer has rightly not been opposed by learned Govt. Advocate for the respondent. Learned counsel for the petitioner then prayed that some time to deposit the enhanced amount of fine be extended. This prayer has rightly not been opposed by learned Govt. Advocate for the respondent. In this view of the matter, let the enhanced amount of fine be deposited on or before 31st July, 2006. ( 13 ) FOR the reasons stated hereinabove, i do not find any merit in this petition, the same is hereby dismissed. Petition dismissed. .