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Madhya Pradesh High Court · body

2009 DIGILAW 505 (MP)

Sabba v. State of M. P.

2009-04-17

A.P.SHRIVASTAVA

body2009
ORDER 1. M.Cr.C. No.7260/08 (Prahlad Singh v. State of M.P.) M.Cr.C.No.6707/08 (Makhan Das v. State of M.P.), M.Cr.C. No.5879/08 (Bhagwan Singh and others v. State of M.P.), M.Cr.C. No.6707/08 (Sabba and others v. State of M.P.) are being disposed of by this common order as the point for consideration in all these miscellaneous criminal cases are the same. The point for consideration is that whether the period for payment of amount of fine, ordered in judgment in an appeal, can be extended by this Court in view of section 482 CrPC? 2. The facts of the case, in nutshell, are as under: In M.Cr.C. No.7260/08 (Criminal Appeal No.497/2001), petitioner Prahalad Singh has been convicted under section 324 of IPC and sentenced to the period already undergone by him with an imposition of fine amount of Rs.3,000/-. It has further been directed that he shall surrender before the trial Court to deposit the amount of fine within a period of three weeks from the date of receipt of the copy of the judgment with default stipulation. In M.Cr.C. No.6707/08 (Criminal Appeal No.434/2002), petitioner Makhan Das has been convicted under section 323 read with section 34 of IPC and sentenced to the period already undergone by him with an enhancement of fine from Rs.500/- to 1,000/-. He is further directed to deposit the amount of fine within a period of three weeks from the date of receipt of certified copy of the judgment with default stipulation. In M.Cr.C. No.5879/08 (Criminal Appeal No.110/2000), petitioner Bhagwan Singh has been convicted under sections 451, 323 and 426 of IPC and sentenced to the period already undergone by him but the amount of fine to the tune of Rs.1,000/- has been imposed under section 323 of IPC; amount of fine to the tune of Rs.500/- has been imposed under section 426 of IPC while the amount of fine as awarded by learned trial Court under section 451 of IPC has been enhanced from Rs.100/- to Rs.500/-. The rest of the petitioners have been convicted under section 323 read with section 34 of IPC and they have also been sentenced to the period already undergone by them but the amount of fine has been imposed to the tune of Rs.1,000/- each with default stipulations. The rest of the petitioners have been convicted under section 323 read with section 34 of IPC and they have also been sentenced to the period already undergone by them but the amount of fine has been imposed to the tune of Rs.1,000/- each with default stipulations. They have been directed to deposit the amount of fine before the trial Court within a period of 15 days from the receipt of the judgment. In M.Cr.C. No.6760/08 (Criminal Appeal No.355/99),the petitioner No.2 Ramdayal has been convicted under section 326 of IPC and was sentenced to the period already undergone by him but the amount of fine has been enhanced from Rs.5,000/- to 7,000/-. The rest of the petitioners have been convicted under sections 148 and 324 of IPC and sentenced to the period already undergone by them but the amount of fine has been enhanced under section 324 of IPC from Rs.2,000/- to Rs.3,000/- with default stipulations. The conviction and sentence of all the petitioners under section 148 of IPC have been maintained. It has further been directed that the amount of fine be deposited before the trial Court within a period of one month from this judgment. 3. On behalf of the petitioners, petitions under section 482 of Code of Criminal Procedure, 1974 have been filed and it is submitted that they could not deposit the amount of fine as directed by this Court and prayer was made to extend the period for payment of amount of fine. 4. On behalf of the State, the applications have been opposed on the ground that in view of section 362 of CrPC, time cannot be extended with the aid of section 482 of CrPC. 5. Counsel for the petitioners submit that this Court has inherent powers to extend the period for payment of fine and in support of their contention, they cited some decisions of this Court as well as of the apex Court. They relied on Madiya v. State of M.P., reported in 1990(1) MPWN 84 , in which it was held that time fixed for depositing amount of fine may be extended exercising inherent powers. They relied on Madiya v. State of M.P., reported in 1990(1) MPWN 84 , in which it was held that time fixed for depositing amount of fine may be extended exercising inherent powers. They further filed some photocopies of the certified copies of the order dated 8.4.2009 passed in M.Cr.C.No.2190/ 09 (Bablu @ Vikram Singh v. The State of M.P.), the order dated 9.4.2009, M.Cr.C. 2106/09 (Bhaiyalal v. TheState of M.P.)and the order dated 9.4.2009, M.Cr.C. No.2097/09 (Vishan Gir v. The State of M.P.). 6. Counsel for the petitioners also relied on Shyam Bihari v. State of Madhya Pradesh, reported in 1973 JLJ 526 ,in which the object and the scope of section 561A of CrPC 1898 was discussed and it was observed as under : "it is now well settled that section 561A of the Code of Criminal Procedure confers no new powers on the High Court. It merely safeguards all pre-existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. The sections provide that those powers which the Court inherently possesses shall be preserved lest it be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent powers had survived the passing of the Code." 7. Counsel for the petitioners also relied on a decision of the apex Court rendered in the case of Mahendra Singh and others v. State of Bihar, reported in AIR 2002 SC 387 , in which the appellants stood convicted under section 324, IPC and were sentenced to imprisonment for 6 months. On appeal, the High Court maintained the conviction but reduced the sentence to period already undergone and directed to pay fine of Rs.500/ in default to further undergo imprisonment RI for 3 months. During the period prescribed for payment of fine, the accused could not deposit the amount in question. Accused filed an application for extension of time by invoking jurisdiction under section 482, CrPC. That application having been rejected by the High Court, it was dismissed thrice and then the matter went to the apex Court. The apex Court observed that there cannot be any dispute that the accused were not entitled to file so many applications before the High Court invoking jurisdiction under section 482. That application having been rejected by the High Court, it was dismissed thrice and then the matter went to the apex Court. The apex Court observed that there cannot be any dispute that the accused were not entitled to file so many applications before the High Court invoking jurisdiction under section 482. But having regard to the facts and circumstances of the present case, and in view of the statement that the accused were ill-advised to file number of applications before the High Court, the apex Court allowed the appeal and granted a month's time to make the deposit of fine, as directed by the High Court. 8. Apart from the above, some citations were also tiled which are IsherDasv. The State of Punjab, reported in AIR 1972SC 1295; YashPal Mittal v. The State of Punjab; reported in AIR 1977 SC 2433 and Minu Kumari and another v. State of Bihar, reported in 2006(3) AIR SCW 2330, but the facts of these cases are different and therefore will not be helpful to the petitioners. 9. Counsel for the State also relied on a decision of the apex Court rendered in the case of Smt. Sooraj Devi v. Pyare Lal and another, reported in AIR1981 SC 736, in which it is held as under: 4. The sole question before us is whether the High Court was righ1 in refusing to entertain Criminal Miscellaneous Application No.5127 of 1978, on the ground that it had no power to review its order dated 1 st September, 1972. Section 362 of the Code of Criminal Procedure declares : "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." He also relied on Naresh and others v State of U.P., reported in AIR 1981 SC 1385 , but the facts of this case are different and therefore will not be helpful him. 10. The legal question which is involved is that whether after passing a judgment or final order by the Court, the matter can be reopened, altered or modified with the aid of inherent powers of the Court under section 482 of CrPC? 10. The legal question which is involved is that whether after passing a judgment or final order by the Court, the matter can be reopened, altered or modified with the aid of inherent powers of the Court under section 482 of CrPC? 11 Now, r would like to quote the relevant provisions of 'section 362 and 482 of CrPC which are as under: "362. Court not to alter judgment. -- 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 of final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. 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 t any order under this Code, or to prevent abuse the process of an Court or otherwise to secure the ends of justice." 12. In the case of Sunita Jain v. Pawan Kumar Jain and others, reported in 2008(3) JLJ 374 , the apex Court considered the provisions of section 362 and 482 of CrPC and observed that it is clear that a Court cannot alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error. The scheme of the Code, in our judgment, is clear that as a general rule, as soon as the judgment is pronounced or order is made by a Court, it becomes functus officio (ceases to have control over the case) and has no power to review, override, alter or interfere wit it. 13. In case State Represented by D.S.P., S.B.C.I.D., Chennai v. K. Rajendran and others, reported in 2008 AIR SCW 6911, while discussing the scope of section 362 and 482 of CrPC, the apex Court has observed that section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The inherent powers, however, as much as controlled by principle and precedent as are its express powers by statutes. The inherent powers, however, as much as controlled by principle and precedent as are its express powers by statutes. If a matter is covered by an express letter of law, the Court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction. Section 362 prohibits reopening of a final order except in the cases of clerical or arithmetical errors. Such being the position power under section 482 cannot be exercised to reopen or alter an order disposing of a petition decided on merits. 14. In the case of Hari Singh Mann v. Harbhajan Singh Bajwa and others [ (2001)1 SCC 169 ], it was observed by the apex Court that "there is no provision in the Code of Criminal Procedure authorizing the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of section 482 of the Code. Section 362, CrPC has extended the bar of review not only to judgment but also to the final orders other than the judgment. Section 362 is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for the same relief unless the former order is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error". 15. It is observed by the apex Court in Smt. Sooraj Devi (supra), that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. It is true that the prohibition in section 362 against the Court altering or reviewing its judgment is subject to what is "otherwise provided by this Code or by any other law for the time being in force". It is true that the prohibition in section 362 against the Court altering or reviewing its judgment is subject to what is "otherwise provided by this Code or by any other law for the time being in force". In this regard, in para 5 of the judgment, it is observed by the apex Court that the appellant points out that he invoked the inherent power of the High Court saved by section 482 of the Code and that notwithstanding the prohibition imposed by section 362 the High Court had power to grant relief. Now it is well settled that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. Further, the apex Court also relied on Sankatha Singh v. State of U.P. [AIR 1962.SC 1208]. 16. It is true that the prohibition in section 362 against the Court altering or reviewing its judgment is subject to what is "otherwise provided by this Code or by any other law for the time being in force". Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in section362 and, therefore, the attempt to invoke that power can be of no avail. 17. Now, I will examine whether the petitioners can avail the alternative remedy. Section 68 and 69 of the Indian Penal Code deals with the imprisonment to terminate on payment of fine and the termination of imprisonment on payment of proportional part of fine. Section 68 of the Indian Penal Code lays down as under: "68. Imprisonment to terminate on payment of fine. -- The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law. 69. Termination of imprisonment on payment of proportional part of fine. -- If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate." 18. -- If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate." 18. On similar circumstances of the case, the Madras High Court in the case of Chinnaparaju v. State, reported in 1992(3) Crimes 185, deals the matter in the light of section 68 and 69 of the Indian Penal Code. In that case, the petitioner convicted and sentenced to pay a fine of Rs. 10,000/- in default to undergo 18 months RI. Three months' time allowed for payment of fine. Petitioner failed to pay fine and was arrested and committed to undergo default sentence. Application filed before Sessions Court to receive fine amount and order for release of accused. Application returned on the ground petitioner-accused had failed to deposit fine within the period allowed to him. The Madras High Court also held that it appears that learned Sessions Judge was under a mistaken impression that once a time limit have been fixed by the High Court for payment of the fine, it is not legitimately permissible for the petitioner-accused to remit the fine amount, after the expiry of the time limit but before the expiration of the terms of imprisonment fixed in default of payment and pray for the termination of the sentence on payment of fine. If the time limit had been set by this Court for payment of fine and the fine amount is not paid within the time so fixed, then it goes without saying that the petitioner accused has to either surrener before the Court or the prosecuting agency will be in a position to arrest him and produce before Court for his detention in prison for undergoing the default sentence. Ultimately, the Sessions Court was to receive the amount if deposited by the accused-appellant and terminate his sentence. 19. The Allahabad High Court in Ram Lakhan and others v. The State, reported in 1986 Cri.LJ 617, has discussed the matter when the amount has not been deposited within the stipulated time as directed by the Court accused is to be taken into custody at once. Imprisonment terminates u/s 68, IPC only after accused is taken into custody. 19. The Allahabad High Court in Ram Lakhan and others v. The State, reported in 1986 Cri.LJ 617, has discussed the matter when the amount has not been deposited within the stipulated time as directed by the Court accused is to be taken into custody at once. Imprisonment terminates u/s 68, IPC only after accused is taken into custody. The Court held that it is clarified that after the applicants have surrendered themselves in Court to serve out the sentence of imprisonment on deault of payment of fine, they will be released as soon as the amount of fine is deposited and their imprisonment, as aforesaid, shall terminate under S.68, IPC. It was also observed that in case of default in payment and postponing payment without surrendering into Court -- Accused is guilty of abuse of process of Court -- Extention of time to make payment cannot be granted with the aid of section 482 CrPC. 20. Some citations submitted by the learned counsel for the petitioners in the Court however in those judgments the provisions of section 362 and section 68 of IPC have not been brought to the notice of the concerning Bench and looking to the views expressed by the apex Court as discussed above, there is no need to refer the matter by way of reference to a larger Bench. 21. In view of the above discussion, it is made clear here that the period to deposit the amount of fine cannot be extended by this Court and the petitioners can avail the remedy of provisions of section 68 of IPC. Therefore, it is directed that the petitioners shall surrender before the Court and if the fine amount is paid into the Court, the mandate of law, as had been provided under section 68 of the Indian Penal Code is to operate and the imprisonment, in default of payment of fine, has to terminate on the payment of the fine amount into the concerning Court. 22. With such observation, these petitions are disposed of accordingly. A copy of this order be kept in all the connected petitions.