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2009 DIGILAW 1323 (PNJ)

Harjinder Singh v. State Of U. T. Chandigarh

2009-08-05

SHAM SUNDER

body2009
JudgmentJudgment Sham Sunder, J. 1. This petition under Section 482, read with Section 362 of the Code of Criminal Procedure, for recalling the order dated 19.03.09, passed by this Court, in Criminal Revision No, 1001 of 2000, has been filed by the petitioner. 2. The petitioner, filed a revision-petition, against the judgement and order dated 24.07.2000, rendered by the Court of Additional Sessions Judge, Chandigarh, vide which, it partly accepted the appeal, thereby reducing the substantive sentence, awarded to him (petitioner), to 1 year, from 1 = years, for the offence, punishable under Section 304-A of the Indian Penal Code, against the judgement of conviction, and the order of sentence dated 17.09.99, rendered by the Court of Additional Chief Judicial Magistrate, Chandigarh, vide which, it convicted the accused (petitioner), to undergo rigorous imprisonment, for a period of four months, for the offence, punishable under Section 279 of the Indian Penal Code, and further sentenced him, to undergo rigorous imprisonment, for a period of 1 1/2 years, and to pay a fine of Rs.1500/-, for the offence, punishable under Section 304-A of the Indian Penal Code. In default of payment of fine, to further undergo rigorous imprisonment, for a period of three months. It was stated that the revision-petition, was dismissed, by this Court. It was stated that during the course of arguments, the Amicus-Curiae, who was appointed by this Court, could not bring to the notice of the Court, that a compromise, had already been arrived at, between the legal heirs of the deceased and the revision-petitioner in the year 1999. It was further stated that the compromise deed was not placed, on record, at that time. It was further stated that though the offences, under Sections 279 and 304-A of the Indian Penal Code, were not compoundable, yet, in the interest of justice, the same be permitted to be compounded, by recalling the order dated 19.03.09, passed by this Court, in Criminal Revision No. 1001 of 2000. 3. I have heard the Counsel for the petitioner, and have gone through the record of the case, carefully. 4. 3. I have heard the Counsel for the petitioner, and have gone through the record of the case, carefully. 4. The Counsel for the petitioner, submitted that since the Counsel engaged by the petitioner, in the revision-petition, did not appear, and this Court, appointed an Amicus-Curiae, who could not bring the factum of compromise, between the legal representatives of the deceased, and the accused, which had already been arrived at, in the year 1999. She further submitted that, according to the compromise, the accused, was held liable to pay Rs. 50,000/-, as damages, to the legal representatives of the deceased. It was further submitted that the compromise, was duly signed and thumb marked by the legal representatives of the deceased and the accused, as also the witnesses. It was further submitted that, even the legal representatives of the deceased, got compensation, from the Motor Accident Claims Tribunal, in MACT No. 77 of 1993, which petition, was decided on 04.05.98. She further submitted that the judgement passed, in the revision-petition, be recalled and the same (revision-petition) be reheard. 5. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the petitioner, in my considered opinion, it is not a fit case, in which, the order dated 19.03.09, passed, on merits, in Criminal Revision No. 1001 of 2000, deserves to be recalled, for the reasons to be recorded, hereinafter. In the first instance, it is to be determined, as to whether, a Criminal Court can review its own judgement or order, once it has attained finality. Section 362 of the Code of Criminal Procedure, is very clear, in this respect, the provisions whereof, are extracted hereunder:- "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 judgement or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." The plain reading of the provisions of Section 362 of the Code of Criminal Procedure, clearly goes to reveal that, no Court, once it has signed its judgement or final order, disposing of a case, shall alter or review, the same, except to correct a clerical or arithmetical error. Similar principle of law, was laid down, in State of Kerala v. M.M. Manikantan Nair, 2001(2) R.C.R.(Criminal) 657: AIR 2001 (SC) 2145, a case decided by a three Judge Bench of the Apex Court. The principle of law, laid down, in the said case, was to the effect, that the Code of Criminal Procedure, does not authorize the High Court, to review its judgement or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the Court, after it has signed its judgement or final order, disposing a case, from altering or reviewing the said judgement or order, except to correct a clerical or arithmetical error. This prohibition is complete and no criminal Court can review its own judgement or order after it is signed. The facts of State of Keralas case (supra) were that by the first order, the High Court rejected the prayer of the respondent, for quashing the criminal proceedings. This order attained finality. By the subsequent order, which was impugned, the High Court reversed its earlier order, and quashed the criminal proceedings for want of proper sanction. It was held that, by no stretch of imagination, it could be said that by the impugned order, the High Court only corrected any clerical or arithmetical error. In fact, the impugned order was an order of review, as the earlier order was reversed, which could not have been done, as there is no such provision under the Code of Criminal Procedure, but there is an interdict against it. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. The order dated 19,03.09, therefore, cannot be reviewed/recalled. 6. Now coming to the factum, as to whether, compromise can be effected, for the offences, punishable under Sections 279 and 304-A of the Indian Penal Code, which are not compound- able, as per the provisions of Section 320 of the Code of Criminal Procedure. In the instant case, on account of the rash or negligent driving of the vehicle, in question, by the petitioner, a valuable life of a 17 years old young boy, was cut-short. Keeping in view the nature and seriousness of the offences, under Sections 279 and 304-A of the Indian Penal Code, the Parliament, did not make the same compoundable. In the instant case, on account of the rash or negligent driving of the vehicle, in question, by the petitioner, a valuable life of a 17 years old young boy, was cut-short. Keeping in view the nature and seriousness of the offences, under Sections 279 and 304-A of the Indian Penal Code, the Parliament, did not make the same compoundable. Only those offences, which are mentioned, in the tables given,/in Section 320 of the Code of Criminal Procedure, can be compounded, with or without the permission of the Court. Composition of such offences, would be against the public policy. While defining the powers of the High Court, under Section 482 Cr.P.C, the Apex Court summed up, its conclusions, in case, State through Special Cell, New Delhi v. Navjot Sandhu @ Afshan Guru and others 2003(2) RCR (Criminal) 860 (SC), in para Nos. 28 and 29, which read as follows : "28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms propose to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal is disguise." 29. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal is disguise." 29. Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However, as is set out in Satya Narayanan Sharmas case (supra) this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of the justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment." 7. In view of the enunciation of the principle of law, made in the aforesaid cases, the power under Section 482 of the Code of Criminal Procedure, cannot be exercised, in this case, as there is a specific bar, created by Section 320 of the Code of Criminal Procedure, for the composition of offences, punishable under Sections 279 and 304-A of the Indian Penal Code. 8. For the reasons recorded above, the petition, is dismissed.