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2008 DIGILAW 1061 (AP)

State of A. P. v. Hymad Pasha

2008-12-15

D.S.R.VERMA, K.C.BHANU

body2008
ORDER (Per D.S.A. Varma, J.) Heard the learned Public Prosecutor appearing for the petitioner-State; Sri C. Padmanabha Reddy, learned Senior Counsel, Amicus Curiae; and Smt. Shanthi Neelam, learned Counsel appearing for the respondent-sole accused. 2. This miscellaneous petition is listed at the instance of the learned Public Prosecutor under the caption "FOR BEING MENTIONED", upon the instruments of the Hon'ble the Chief Justice, Andhra Pradesh. 3. Now, the questions that fall for consideration are- (1) Whether a second criminal appeal is maintainable under the provisions of the Code of Criminal Procedure, 1973 ('Cr.P.C.', for short)? And (2) What would be the effect of the judgment passed in a non-maintainable criminal appeal? 4. The facts that led to the present controversy, in brief, are as under: The accused in Criminal Appeal No. 502 of 2006 and in Criminal Appeal No. 690 of 2006 is one and the same. He was convicted by the Session Judge, Adilabad for the offences punishable under Sections 302 and 498-A, I PC and was sentenced to undergo 'imprisonment for life' and to pay a fine of Rs. 1,000/- (Rupees one thousand only), in default to undergo rigorous imprisonment for two months for the offence under Section 302 IPC; and was further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/- (Rupees five hundred only), in default to undergo rigorous imprisonment for one month for the offence under Section 498-A, IPC, by judgment, dated 16-2-2006, in Sessions Case No. 128 of 2004. 5. The said judgment had been challenged by the accused initially in Criminal Appeal No. 502 of 2006. On behalf of the accused and upon the instructions of the accused, Sri S. Surender Reddy, learned Advocate, presented the said criminal appeal and the same was admitted by a Division Bench of this Court on 12-4-2006. Later, after about four months, the accused got sent a letter to the Andhra Pradesh High Court Legal Services Committee, High Court Buildings, Hyderabad (for short, "the A.P.H.C.L.S.C.") through the Superintendent, Central Prison, Cherlapalli, Ranga Reddy District seeking legal aid in order to challenge the conviction and sentence recorded by the trial Court, as referred above. The said criminal appeal was numbered as Criminal Appeal 690 of 2006 and the same was admitted on 08-6-2006. The said criminal appeal was presented by Smt. Shanthi Neelam, panel Advocate of the A.P.H.C.L.S.C. 6. The said criminal appeal was numbered as Criminal Appeal 690 of 2006 and the same was admitted on 08-6-2006. The said criminal appeal was presented by Smt. Shanthi Neelam, panel Advocate of the A.P.H.C.L.S.C. 6. Initially, Criminal Appeal No. 502 of 2006 came up for hearing on 07-3-2008 before the Division Bench consisting of the Hon'ble Sri Justice A. Gopal Reddy and the Hon'ble Sri Justice B. Seshasayana Reddy and the said Division Bench had confirmed the conviction and sentence recorded by the trial Court against the accused, by judgment dated 07-3-2008. Advance order of the said judgment had been communicated to the Jail authorities, Cherlapalli on 15-4-2008 and was served on the accused on 18-4-2008 and by virtue of the said order, the accused was undergoing the sentence of imprisonment. 7. While so, the other appeal Criminal Appeal No. 690 of 2006 presented by the panel Advocate appointed by the A.P.H.C.L.S.C. had come up for hearing before this Court and after hearing learned Counsel appearing for the accused as well as the learned Public Prosecutor, this Court by judgment, dated 29-9-2008, recorded a finding that the trial Court was right in awarding punishment for the offence under Section 498-A, IPC and confirmed the sentence of imprisonment in that regard, while setting aside the conviction and sentence for the offence under Section 302 IPC. Advance order of the said judgment had been communicated to the Jail authorities, Cherlapalli on 01-10-2008 by the Registry of the High Court and on the next day, the accused was released by virtue of the said order, inasmuch as, he had already undergone the sentence of imprisonment imposed by the trial court, which has been confirmed by this Court. 8. Subsequently, somehow, a news item had appeared in the daily news magazines, whereby it was understood and pointed out that parallel justice was done by two different Benches of this Court. This Court, upon conducting a preliminary investigation, instructed the learned Public Prosecutor to examine and take necessary steps in the matter in the interest of justice. 8. Subsequently, somehow, a news item had appeared in the daily news magazines, whereby it was understood and pointed out that parallel justice was done by two different Benches of this Court. This Court, upon conducting a preliminary investigation, instructed the learned Public Prosecutor to examine and take necessary steps in the matter in the interest of justice. Accordingly, it appears that the learned Public Prosecutor had conducted a preliminary enquiry and found that the sole accused in Sessions Case No. 128 of 2004 on the file of the trial Court had preferred two criminal appeals in a span of about six months - one through his Counsel and the other by addressing a letter with a covering letter of the Jail authorities seeking legal aid. It appears, it was also found that the judgment in the second criminal appeal was rendered by this Court without having knowledge of the judgment in the first criminal appeal rendered by another Division Bench of this Court. 9. At this juncture itself, we want to make it clear that either side of the parties or the Registry had not brought to the notice of this Court about the presentation and disposal of earlier Criminal Appeal No. 502 of 2006 and as such, this Court after hearing both sides and upon proper appreciation of evidence on record and also the submissions made by either side, rendered the judgment, agreeing wit the judgment of the trial Court in part. 10. Now under the said circumstances, there are two judgments on record - one judgment was rendered earlier by another Division Bench of this Court confirming the judgment of the trial Court; and the other was rendered by this Court allowing in part the said judgment of the trial Court, latter. 11. Now, the points that tall for consideration are- (1) Whether Criminal Appeal No. 690 of 2006 is maintainable? And (2) What would be the effect of the judgment rendered therein? 12. Point No.1:- In this regard, it is to be seen that an appeal has to be filed as postulated under Section 382 of Cr.P.C. There is no specific provision expressly made permitting the accused to file a second appeal. Of course, there is a passive reference under Section 384(4) Cr.P.C., as tow hat should happen in case where the first appeal was dismissed summarily. Of course, there is a passive reference under Section 384(4) Cr.P.C., as tow hat should happen in case where the first appeal was dismissed summarily. The said provision clearly enables that when a first appeal was dismissed summarily Le., without going into the merits of the case, a second appeal can be filed, however, subject to the satisfaction of the Court and also in order to meet the ends of justice as the facts and circumstances of the case call for. But, it is to be noted that as already pointed out, there is no express provision enabling an accused to file a second appeal against similar order, which was already challenged before this Court. But, in the present case, the circumstances are different. Both these criminal appeals were represented by two different Counsel - one engaged by the accused himself and the other as requested by the accused by the A.P.H.C.L.S.C. Both the matters were disposed of after hearing in detail and rendered the judgments, of course, taking two different views. Therefore, the conditions mentioned under sub-section (4) of Section 384 Cr.P.C., are not applicable in the present case. 13. It is to be next seen that wh8n once judgment is rendered by a competent appellate Court, the same shall have to be treated as final and conclusive, except under two circumstances - firstly, as contemplated under Section 393 of Cr.P.C., an appeal against acquittal under Section 378 Cr.P.C., arising out of the same case and secondly, an appeal for the enhancement of sentence under Section 377 Cr.P.C., arising out of the same case. 14. From the above provision and the conditions incorporated therein, it is obvious that in those two circumstances, mentioned above, a second appeal before the appellate Court is permissible. But, those are not the circumstances that are prevailing in the present case. Therefore, the above two conditions also cannot ensure to the benefit of the accused in any manner or capable of making the second appeal, which was filed in the present case, as maintainable. 15. It is to be reiterated that as a general rule, there shall not be any second appeal, once a matter has been adjudicated by an appellate Court under the Cr.P.C. Of course, as already pointed out, subject to few exceptions, which have already been referred to, which are not prevalent in the present facts and circumstances of the case. 15. It is to be reiterated that as a general rule, there shall not be any second appeal, once a matter has been adjudicated by an appellate Court under the Cr.P.C. Of course, as already pointed out, subject to few exceptions, which have already been referred to, which are not prevalent in the present facts and circumstances of the case. Therefore, we have to necessarily hold that the' second appeal Criminal Appeal No. 690 of 2006 is not maintainable at all. 16. Point No. 2:- The next question is what would be the effect of such judgment rendered in a second appeal filed at the instance of the accused himself. 17. It is also to be noted here that the accused got forwarded a letter to the A.P.H.C.L.S.C., through the Jail authorities, Cherlapalli upon which, the assistance of a learned Advocate was accorded to the accused. When both the criminal appeals came up for hearing on different dates, the learned Counsel appearing for either side were heard in detail and of course, the learned Public Prosecutor is common for respondent State in both the matters. Obviously, one criminal appeal went partially in favour of the accused and the other in total agreement with the finding recorded by the trial Court and against the accused. In such circumstances, can it be construed that the judgment, which is favourable or beneficial to the accused, is to be treated as the judgment? The answer is absolute 'no', for the simple reason that the beneficial adjudication is something unknown in criminal jurisprudence. 18. Learned Counsel appearing for the accused contended that since the judgment in second criminal appeal is of more benefit to the accused, it is only that judgment that is to be applied. But, the whole question is whether the accused can choose a particular judgment, which is more beneficial to him. 19. As on the date of hearing of the second appeal Criminal Appeal No. 690 f 2006, the accused was already suffering the sentence of imprisonment, as was confirmed by the earlier Division Bench of this Court and he has obviously has the knowledge about that judgment, which had become final. But, unfortunately, whatever may be the reason and source that judgment had not been noticed nor was brought to the notice of the Court. But, unfortunately, whatever may be the reason and source that judgment had not been noticed nor was brought to the notice of the Court. Had it been done this Court would not have gone into the merits of the case and decide the matter on record, since as already pointed out, the very presentation ofthe second appeal as such, ex facie, is not maintainable. 20. The incidental question would be - as to whether an appeal, which is not maintainable ex facie under law, can be attached with any value, that too to the benefit of the accused. Again, the answer would and should be affirmative 'no'. 21. Sri C. Padmanabha Reddy, learned Senior Counsel, while assisting the Court amices curiae had brought to the notice of this Court a judgment rendered by the apex Court in The State of A.P. v. Thadi Narayana' which also had arisen from the judgment rendered by a Full Bench of this Court. The question that involved in the said matter was - as to whether the judgment rendered by a learned single Judge can be revised or not. It appears, that question had already fallen for consideration before the Full Bench of this Court in Thadi Narayana v. State of Andhra Pradesli, which held that the order passed by a learned Single Judge of this Court was outside the authority conferred on the High Court under Section 423(1)(b)(2) Cr.P.C., and as such can be treated to be without jurisdiction and therefore a nullity. 22. We are fortified with the view expressed by us, as above, in the light of the judgment rendered by another Full Bench of this Court in re Ranganayakult.f3. The observations laid down at para 49 of the said Judgment are necessary to be extracted, for ready reference, which are as under: "The Criminal Procedure Code does not confer more than one right of appeal on an accused person from a conviction and sentence passed on him. Once he files an appeal in the manner prescribed by law, the Court becomes functus officio and another appeal at his instance is not maintainable. Once he files an appeal in the manner prescribed by law, the Court becomes functus officio and another appeal at his instance is not maintainable. The principle applies with equal force to the case of jail appeal as to the case of any other appeal, for, by preferring an appeal through the jail authorities the accused exercised his right of appeal and, if it is disposed of, he cannot claim to have another right. The content of the right of appeal is the same whether it is filed through the jail authorities or presented by an advocate in Court, though the procedure prescribed for presentation and perhaps in the manner of disposal is slightly different. It 1. AIR 1962SC240(1). 2. AIR 1960 A.P. is not possible to hold that the disposal is provisional and is liable to be reversed, if an appeal is presented by an advocate in Court. The right once exercised is exhausted and the accused cannot claim to exercise it over again. 23. In this connection, it is interesting to note the judgment rendered by a Full Bench of the High Court of Kerala in Chellappan v. State of Kerala. In the said case also, similar situation had arisen and it was observed at para 13 of the judgment, as under: "......So, we are not interfering with an earlier valid order as is contended, but is only stating that the said order being nonest, has only to be ignored......" 24. Further, in A.R. Antulay v. R.S. Nayal', it was observed by a seven-judge Bench of the apex Court at para 104, as under: Once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the court, it is not only appropriate but also the duty of the Court to rectify the mistake by exercising inherent powers. Judicial opinion heavily leans in favour of this view that a mistake of the court can be corrected by the Court is without any fetters. This is on the principle as indicated in Alexander Rodger's case........." (emphasis supplied by us) 25. Judicial opinion heavily leans in favour of this view that a mistake of the court can be corrected by the Court is without any fetters. This is on the principle as indicated in Alexander Rodger's case........." (emphasis supplied by us) 25. It was further taken note of the observations made by a four-Judge Bench of the apex Court in Keshar Deo v. Radha Kissen ( AIR 1953 SC 23 ), which is as under: "The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors." 4. 1995 CrI.L.J. 150 (Ker) (F. B.). 5. AIR 1988 SC 1531 at P. 1570. 26. In strict sense, it cannot be treated as a mistake of the Court. But, at the same time, it was a mistake on the part of the Court because important facts were not brought to the notice of the Court - whatever may be the reason, which resulted in entertaining an appeal, which is not maintainable an rendering judgment by this Court in the said appeal, which is not lawful and contrary to the decision rendered earlier by another Division Bench of this Court, which attained finality. 27. Though it is not a mistake on the part of the Court, with all humility, and since the dignity and majesty of this Court is to be upheld, we are prepared to take it as a mistake without reference to source of it and since the second judgment has emanated from this Court for various reasons, which are beyond the control of this Court, we feel it expedient to take up the task of correcting the said mistake by invoking our inherent jurisdiction. We are prompted to make the above observations, in view of the observations made by the seven-Judge Bench of the Apex Court in A.R. Antulay scase (5 supra), at para 106, for ready reference, which are as under: ''To err is human, is the oft quoted saying. Courts including, the apex one are on exception. To own up the mistake when judicial satisfaction is reached does not militate against its status of authority. Perhaps it would enhance both.", 28. Courts including, the apex one are on exception. To own up the mistake when judicial satisfaction is reached does not militate against its status of authority. Perhaps it would enhance both.", 28. However, the seven-Judge Bench of the Apex Court in A.R. Antulay's case (5 supra) did not express any independent view on the view expressed by the Full Bench of this Court in Thadi Narayana's case (2 supra) nor the said view did suffer any disapproval. Therefore, for all purposes, the ratio laid down by the Full Bench of this Court in Thadi Narayana'scase (2 supra) holds the filed. 29. Now, yet another incidental question would be - whether this Court can interfere with the judgment rendered by us by way of recalling and declaring the same as non-nest in the eye of law. In this regard, the answer is readily available under the inherent jurisdiction, as enunciated under Section 482 of Cr.P.C., which reads as under: "482. 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 'effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 30. The above said provision envisages three important conditions - firstly, to make the orders, as may be necessary, to give effect to any order passed by this Court under this Code, secondly, to prevent the abuse of process of any Court, and thirdly; to secure the ends of justice. 31. All the three ingredients are very much present in the present set of facts - Firstly is the duty of every Court to see that the judgment or order of another Court to be given effect to. Obviously, in the present case, already a Division Bench of this Court had rendered one judgment confirming the conviction and sentence imposed by the trial Court. Obviously, in the present case, already a Division Bench of this Court had rendered one judgment confirming the conviction and sentence imposed by the trial Court. Therefore, it is the duty of every Court including this Court to see that; that judgment or order is given effect to, which attained finality; Secondly, we are of the view that there is any amount of scope for abuse of process of the Court for the reasons that - one appeal had already filed by the accused himself, as we could see from the record, which was registered by the Registry, and the same went unnoticed at different stages in the Registry, which resulted in listing of the same before this Court and compelling this Court to render a second judgment. Though we have to restrain ourselves from making any comments against the accused-convict, still, it is irresistible for us, to observe that there was a clear semblance of abuse of the process of this Court and the Registry cannot have any escape from this; and Thirdly, when once a judgment has been pronounced by another competent Bench of this Court and the same has become final, the latter judgment of this Court, which is to some extent beneficial to the convict-accused, the said undue benefit, if not prevented at this stage by this Court, would amount to failing in its duty that no attempt has been made in order to meet the ends of justice. 32. Therefore, since all the requirements under Section 482 Cr.P.C. are satisfied for invocation of the inherent power of this Court, in order to prevent the abuse of the process of the Court and also in order to remove any such semblance of feeling among others, we are invoking jurisdiction under Section 482 Cr.P.C. and as a consequence of which, we are of the strong view that the latter judgment in Criminal Appeal No. 690 of 2006, which is nonest in the eye of law, is to be recalled. 33.ln the result, the miscellaneous petition is ordered and the judgment, dated 29-8-2008, in Criminal Appeal No. 690 of 2006, passed by this Court is hereby recalled as the same is nonest or nullity in the eye of law and no effect whatsoever shall be attached to it for any purpose. 34. Consequently, the learned Public. 33.ln the result, the miscellaneous petition is ordered and the judgment, dated 29-8-2008, in Criminal Appeal No. 690 of 2006, passed by this Court is hereby recalled as the same is nonest or nullity in the eye of law and no effect whatsoever shall be attached to it for any purpose. 34. Consequently, the learned Public. Prosecutor, High Court of Andhra Pradesh, Hyderabad is directed to take all necessary steps to give effect to the judgment rendered by a Division Bench of this Court in Criminal Appeal No. 502 of 2006, dated 07-3-2008, in all fours. 35. Since the convict (appellant-accused) has to undergo remaining part of the sentence of imprisonment imposed by the trial Court in Sessions Case No. 128 of 2004, dated 16-02-2006, as was confirmed by the Division Bench of this Court in Criminal Appeal No. 502 of 2006, dated 07-3-2008, the Sessions Judge, Adilabad, shall take necessary steps to ensure that the convict undergoes the remaining part of the sentence. 36. Before parting with the case, though not desirable to make any comment, prima facie and as already pointed out, there is an element of fraud, at least to some extent, on the part of the accused and total non-application of mind on the part of jail authorities when they had two conflicting judgments in their hand before the accused was released. 37. Most importantly, it is rather unfortunate for the Registry to maintain the case records properly at different stages and at different levels, as a result of which, the present peculiar circumstance had arisen. In fact, this type of mistakes cannot be termed as simple mistakes. They have all the trappings of a serious misconduct and accordingly, we are of the considered view that it is a clear failure on the part of the Registry, but for which this unpleasant situation would not have arisen. 38. Therefore, the Registrar General, High Court of Andhra Pradesh, Hyderabad is directed to conduct a detailed enquiry into the matter and identify all the responsible officers of the Registry and report the same to the Hon'ble the Chief Justice and place before the appropriate Committee dealing with disciplinary matters of employees of the High Court, for appropriate and necessary action.