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2009 DIGILAW 91 (KAR)

Pathan Rahamathulla v. C O D

2009-02-02

JAWAD RAHIM

body2009
Judgment :- These petitions under Section 362, CrP.C. are by the 2nd accused in C.C.132/00, who is common in all these petitions, to review the order dated 28.3.2008 passed in Crl.P.3815/07 and connected matters and to quash the proceedings and trial in C.C.132/00. Since all the petitions relate to the same issue, they are taken up together and disposed of by this common order. 2 Office has raised an objection about maintainability of the revision petitions. Learned counsel for the petitioner did not agree with the objection regarding maintainability and desired that the matters be heard by the court on that issue. Hence, office has listed these matters to hear regarding maintainability. 3. I have the learned counsel for the petitioner. 4. Before I advert to the grounds in support of maintainability and merits in these petitions, a brief reference to the factual matrix is necessary. It is: a) Petitioner along with others is arraigned for the offences punishable under Sections 406, 409, 419, 420, 467, 468, 470 and 120B, I.P.C. in C.C.132/00 and other cases on the file of JMFC, Gudibanda, on the accusation that the organization, viz., Gudibanda Gramodyoga Sangha represented by its Secretary was de-recognised for grant of Government aid by order dated 28.3.1984. Despite derecognition of the said Sangha, 1st accused in connivance with the petitioner and others drew from State Treasury an amount totaling Rs.1,30,00,000/-during the period from February 1985 to December 1991. During the said period, petitioner approached the trial court for discharge questioning his prosecution, but it was rejected. Against it, he was in revision in Crl.R.P.79/06 other cases on the file of Principal Sessions Judge, Kolar. The said petitions were also dismissed on 18.6.2007. Aggrieved by these orders, he filed Crl.P.3815/07 and connected cases referred to above, invoking Section 482, Cr.P.C. to quash the proceedings in C.C.132/00 and other cases, which were also dismissed by this court vide order dated 28.3.2008. The petitioner has sought review of the said orders dated 28.3.2008. b) In support of the relief sought, it was urged that the petitioner had discharged his duties in good faith. He had no knowledge or even information about the Sangha being de-recognised by the Government for grants. He had assertively contended in those proceedings that as part of his duty, he had examined the bills submitted to him and as they fulfilled the required conditions, they were passed. He had no knowledge or even information about the Sangha being de-recognised by the Government for grants. He had assertively contended in those proceedings that as part of his duty, he had examined the bills submitted to him and as they fulfilled the required conditions, they were passed. He was not aware as to whether the said Sangha was de-recognised. About 200 bills referred to by the prosecution were tendered periodically by the Sangha and as on the dates he perused the bills he had no knowledge of disentitlement of the Sangha for Government grant. I have perused the orders passed by this Court (Under review). c) This court has considered the petitions on merits. During hearing, it appears the State made a statement before court that the order passed by the Government de-reconising the Sangha for Government grant-in-aid was passed as early as in the year 1983 and the G.O. was not only published, but notified individually to the Deputy Commissioner of the concerned district. The petition was, therefore, aware of the said order and could not have passed the bills. On such factual information, he is described as an accomplice of the 1st accused in syphoning funds of the Government illegally. d) This court recorded the said submission made on behalf of the Government in paragraph 4 of its order and disposed of the petition finding no merit in it. It reads thus. “The learned Government Pleader submits that the accused No.1/Sangha was derecognised in the year 1983 by the Government and notified the same to the Deputy Commissioner and the petitioner. In spite of that the petitioner / accused has passed the bills submitted by accused No.1 / Sangha and thereby caused loss to the Government in a sum of Rs.1,30,000/-between February 1985 to December 1991 and the prosecution has made out a prima facie case for the offences alleged against the petitioner and the Courts below rightly refused to discharge the petitioner and there is no illegality or infirmity in the impugned orders.” e) The petitioner is now before this court again seeking review of the order dated 28.3.2008 passed in Crl.p.3815/07 and connected cases, on the ground that such statement was made on behalf of the state, at the time of arguments and he had no opportunity to controvert it. If opportunity was given the result of the petition would have been different. If opportunity was given the result of the petition would have been different. According to the learned counsel, this court acted on the statement of the State that the order passed by the Government in 1983 de-recognising the Sangha was communicated to the petitioner which was factually incorrect. 5. He submits the facts are otherwise; no such order was communicated to the petitioner, and he cannot be imputed with the knowledge of such order; he has merely discharged his duty as treasury officer in passing the bills and no criminality can be attached to his conduct. He submits after disposal of the criminal petition, petitioner verified truth of such statement and found it was mis-statement and hence, seeks review of the said order. 6. The question, therefore, is even if it is presumed that while disposing of the case on 28.3.2008 the co-ordinate bench of this court, contention on behalf of the State regarding communication of the Government Order to the petitioner was accepted and on that basis alone petitioners were disposed off, is it permissible in law to review such order? 7. Learned counsel for the petitioner assertively contends that the provision of Section 362, Cr.P.C. is not applicable to proceedings in High Court particularly when this court is seized of the matter in exercise of power conferred on it by virtue of Section 482, Cr.P.C. He submits that even if the view is taken that the embargo to review any order as envisaged in Section 362 is applicable, it may be so for orders passed in appeal or revision, but not in orders passed exercise of inherent power conferred on this court by virtue of Section 482, Cr.P.C. He gains citational support to his contention relying on the decision of this court in the case reported in AIR 1963 Mys. 326 (IN RE,BIYAMMA, W/O MOHAMMAD) rendered by the Division Bench (K.S. Hedge and A.A.Khan, JJ). My attention is drawn to the conclusion of the Bench in paragraphs 5, 6 and 7 of the judgment. I have examined the dictum of the said decision. 8. It is seen that this court, speaking through K.S.Hedge, J, observed thus: “If the criminal courts had no inherent jurisdiction to alter or review their judgments there was no need to prohibit the exercise of that power by enacting Sec.369 as well as 424. I have examined the dictum of the said decision. 8. It is seen that this court, speaking through K.S.Hedge, J, observed thus: “If the criminal courts had no inherent jurisdiction to alter or review their judgments there was no need to prohibit the exercise of that power by enacting Sec.369 as well as 424. The Legislature would not have prohibited the exercise of a non-existing power. The Legislature while wisely, if I may say so with respect, prohibited the subordinate courts from altering or reviewing their judgments, left the field clear to the High Court because any error or mistake committed by the subordinate courts can be corrected by the High Court either by exercising its revisional powers or by exercising its power of superintendence under Section 227 of the Constitution. But such remedies are not available as against any error or mistakes that may be committed by the High Court. Therefore, I am of the opinion that the High Court has inherent power to alter or review its appellate judgments.’ No doubt in the said decision a view has been taken that the restriction to review or alter the judgment or order once passed as found in Section 362, Cr.P.C. prohibits review, it will be applicable only to the courts subordinate to the High Court and not to the High Court. The said decision is cited as binding precedent before me and therefore, the matter requires serious consideration. 9. I have bestowed my serious concern to the caselaw. In the first instance, I am compelled to observe that the said decision has come to be rendered in a criminal appeal dealt with by the said Bench. The facts which necessitated such review need reference. They are: In criminal appeal against conviction by the accused, the Division Bench noticed that in trial before the sessions judge, accused were required to be given legal assistance as she was unable to engage a counsel. In the trial court, she was convicted and sentenced to imprisonment for life. Accused No.2 was acquitted. As against her conviction and sentence, she was in appeal. In the High Court before the said Bench, the appeal was handled by one of the counsel appearing on behalf of the society. In the trial court, she was convicted and sentenced to imprisonment for life. Accused No.2 was acquitted. As against her conviction and sentence, she was in appeal. In the High Court before the said Bench, the appeal was handled by one of the counsel appearing on behalf of the society. During hearing, learned counsel represented to the court that the counsel appointed by the trial court to defend the accused had no time to acquaint himself with the facts of the case and having been engaged on the very day the case camp up for trial, i.e. on 11.12.1961, he was unable to discharge his duty properly. The statement made on behalf of the appellant/accused was not controverted by the learned counsel for the State. The Division Bench verified the notes which gave an impression that the defense counsel had been engaged only on the date of trial of the case. Therefore, this court allowed the appeal and remanded the matter. Later, it was brought to the notice of the Bench (High Court) through review petition that the conclusion of the Bench that the standing counsel had been appointed on the date of trial of the case was not factually correct, and that after hearing of the appeal, learned counsel on both sides as well as the court had proceeded on misapprehension of facts. It was also noticed that the counsel of her choice was appointed much earlier and she had full opportunity to defend herself. The Bench, therefore, noticed that the order passed by it allowing the appeal was basically on the misconception of the fact that the appellant was not provided with legal assistance in time and the lawyer appointed to assist her was compelled by the trial court to proceed on the very day of his appointment. Such conclusion, the Bench found, was unjustified because the facts were different. Consequently, it was held that the bar under Section 362, Cr.P.C. does not apply to the High Court and by virtue of Section 482, Cr.P.C. it could review the judgment. 10. I am constrained to observe that the facts considered by Division Bench which resulted in passing of the judgment referred to above are totally different from the facts of this case. We are dealing, in this case, with a petition under Section 482, Cr.P.C. which provision is no doubt wider in application. 10. I am constrained to observe that the facts considered by Division Bench which resulted in passing of the judgment referred to above are totally different from the facts of this case. We are dealing, in this case, with a petition under Section 482, Cr.P.C. which provision is no doubt wider in application. Time and again as held by the apex court, it has to be exercised sparingly. It is not a remedy for all evils, but a remedy to undo the evil which if allowed will result in injustice. In the instant case, accused is pleading ignorance of the appointment of de-recognition of the Sangha and justifying his act of passing bills. He is facing charge, and thus has a right to seek discharge and to place it as defense. Trial has not yet commenced. At this stage, he had approached this court under Section 482, Cr.P.C. This court, noticing the facts and circumstances of the case, in paragraphs 3, 4, 5 and 6 of the order, has observed thus: 3. The learned Counsel for the petitioner submits that the petitioner has discharged his duty and there was no mensrea for the petitioner to commit the alleged offences. According to the prosecution, it is the accused No.1, who has drawn entire money. There is no material placed on record by the prosecution to make out a prima facie case as against the petitioner for the alleged offences. It is further submitted that the sanction given under Section 197 of Cr.P.C. is not valid. In spite of arguing the case on those grounds, the trial court refused to discharge the accused and rejected the application for discharge. The Sessions Judge also erred in rejecting the Revision Petition confirming the order of the trial Court. 4. The learned Government Pleader submits that the accused No.1/Sangha was derecognised in the year 1983 by the Government and notified the same to the Deputy Commissioner and the petitioner. In spite of that the petitioner / accused has passed the bills submitted by accused No.1 / Sangha and thereby caused loss to the Government in a sum of Rs.1,30,000/-between February 1985 to December 1991 and the prosecution has made out a prima facie case for the offences alleged against the petitioner and the Courts below rightly refused to discharge the petitioner and there is no illegality or infirmity in the impugned orders. 5. 5. The Joint Director of ICDS at Bangalore lodged a written complaint. The police registered the case on 11-12-1991 as against the accused No.1 in Crime No.187/1991 for the offence under Sections 419 and 420 of I.P.C. It is alleged that the accused No.1 has fraudulently withdrawn about Rs.1.30 crores from February 1985 to December 1991 in the name of Secretary viz., Gudibanda Gramaudyoga Sangha and Executive Director, Navodaya Reshme Kaigarika Sangha, Gudibanda by creating 200 bills and orders of the Government. After investigation, the COD filed charge sheet for the offences under Sections 406, 409, 419, 420, 467, 468, 472 and 120(B) of IPC against three accused persons. 6. The present petitioner is accused No.2. The petitioner is contending that he had only discharged his duty and there was no mensrea to commit the alleged offences. It is further submitted that the case was registered in the year 1991 and charge is not yet framed.” Therefore, as seen from the conclusion, it is not based only on the ground the petitioner was informed of the order passed by the Government in the year 1983 de-recognising the Sangha. This court held that both the courts had taken into consideration the points raised by both sides and there was no good reason to discharge the accused. To me it does not appear that rejection of the petition by this court was only on the basis that the accused had knowledge of the order dated 28.3.1984, de-recognising the Sangha but, it is an order on merits. 11. Coming to the legal position with regard to review, Section 362, Cr.P.C. is referable to the provision of Section 561, Cr.P.C. of the old code. While rendition of the judgment, the Division Bench has referred to Section 561(A) and 424, Cr.P.C. After amendment of Cr.P.C., the relevant section is found in Section 362. 12. The apex court had an occasion to deal with the aspect in the case of STATE OF ORISSA .v. RAM CHANDER AGARWALA ( AIR 1979 SC 87 ) wherein it is held that ‘Sections 369 and 424 of the old Code do not restrict prohibition under Section 369 to the trial court alone. 12. The apex court had an occasion to deal with the aspect in the case of STATE OF ORISSA .v. RAM CHANDER AGARWALA ( AIR 1979 SC 87 ) wherein it is held that ‘Sections 369 and 424 of the old Code do not restrict prohibition under Section 369 to the trial court alone. The purpose of Sec.424 is to prescribe the mode of delivering judgment, language and the contents of the judgment, while Sec.369 is general in its application and prohibits all courts from altering or reviewing its judgment when once it has signed it. Nor does Section 430 deal with prohibition imposed under Sec. 369. prohibiting the court from altering or reviewing its judgment when once it is signed it.’ Interpreting the scheme of this provision, the apex court has formed the opinion that restriction against the use of review power or reviewing judgment or altering as embodied under Section 362 is applicable not only to courts subordinate to the High Court but to the High Court also. The apex court in unequivocal terms, emphatically declares that the restriction applies to all courts to which Cr.P.C. applies. Thus, it leaves no scope for doubt that the opinion of the Division Bench in the case of Biyamma (AIR 1963 Mys. 326) is now impliedly over-ruled by the decision of the apex court which in point of time is also later and is by a superior court in the hierarchy. 13. As no other case law is brought to my notice to the contrary, I am constrained to hold that the decision of the Division Bench of this court (supra) cannot be applied and the decision of the apex court in case of Ram Chander Agarwala (AIR 1979 SC87) squarely applies, restricting the power of review of this court. 14. Therefore, the petitions certainly are not maintainable as the relief for review sought cannot be granted. On merits also it is seen that the notification by virtue of which the Sangha was de-recognized, disentitles the accused to plead ignorance of it; even if it is shown that it is not personally served on him, because is a Government Order communicated to his office through Deputy Commissioner concerned. 15. On merits also it is seen that the notification by virtue of which the Sangha was de-recognized, disentitles the accused to plead ignorance of it; even if it is shown that it is not personally served on him, because is a Government Order communicated to his office through Deputy Commissioner concerned. 15. Be that as it may, it may be good defense to the accused during trial but it is not of such nature as to stall all proceedings before the trial court and it is not of such nature as to justify quashing of proceedings for the offences indicated above. Hence, I upheld the office objection and do not find any merit in these petitions. They are, therefore, rejected.