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2011 DIGILAW 794 (KAR)

A. Govindaraju v. K. Usha

2011-08-08

JAWAD RAHIM

body2011
Judgment :- 1. Styled as “Review Petition”, this petition is filed. But the provisions invoked are Section 397, 401 and 482 of Cr.P.C. and office has raised objection about its maintainability. 2. In answer to it, the learned counsel for the petitioner Sri. Venkatesh R Bhagath would submit that there is no provision under Cr.PC and hence, he has invoked the provisions referred to above but the relief sought is to review. On such a submission, it has to be held that review is not maintainable under Section 397. It is only a revisional power of this Court. Section 482 is referred to as a provision under which the petitioner seeks the relief of review by this Court. It is noticed in the recent past, similar petitions are being filed in the High Court invoking Section 482 of the Cr.PC for reviewing the final orders passed in criminal proceedings. It is therefore desirable to deal with this issue with reference to the settled position of law as on date. 3. Heard. 4. The contextual facts are petitioner was arraigned for offence punishable under Section 138 of the Negotiable Instruments Act on a complaint by respondent herein. He was put to trial during which the complainant lead evidence in rebuttal of which petitioner also lead evidence. The learned trial Judge considered the evidence on record and found him guilty accepting the complainant’s evidence and rejected his defence. Since more than one cheques were issued, separate cases were registered in which parties have lead evidence. Simultaneously all these cases were considered and by judgment dated 29.03.2006, C.C.No.117/2004, 118/2004, 267/2004 were disposed of convicting the petitioner for offence under Section 138 of N.I. Act imposing upon him punishment to undergo imprisonment for a period of one year and to pay a fine of Rs.5,000/- and also to pay compensation in a sum equal to the amount covered under the cheques. 5. He questioned the conviction in an appeal action under Section 374 of Cr.PC before the Appellate Court but it was of no avail. On confirmation of his conviction, he was in revision before this Court in Crl.PR.354/2008, 353/2008 and 355/2008. The petitions were head on merit after respondent/complainant entered appearance and by considered order dated 26.10.2009, they were disposed of confirming the conviction recorded by the trial Court and the Judgment of the appellate Court. 6. On confirmation of his conviction, he was in revision before this Court in Crl.PR.354/2008, 353/2008 and 355/2008. The petitions were head on merit after respondent/complainant entered appearance and by considered order dated 26.10.2009, they were disposed of confirming the conviction recorded by the trial Court and the Judgment of the appellate Court. 6. This petition is filed to review the order dated 26.10.2009 in Crl.RPs referred to above. The ground in support of the review is that while disposing of the Crl.P.No.354/2008 and other connected matters, this Court imposed fine. This petition is filed to review the said order on the plea that this Court had confirmed the order regarding sentence of imprisonment and to pay a fine of Rs.5,000/- and equal amount covered under the cheque. 7. He submits that the petitioner had availed the time stipulated directing him to pay the amount. He approached the respondent/complainant and both have settled the matter amicably between them. He submits that they have arrived at compromise by which the respondent has agreed to receive the amount covered under the cheque and she has agreed for compounding the offence. Since the respondent has received the amount, there is nothing to be paid but since the case has been disposed of, the petitioner has a liability to undergo the imprisonment. Thus, this Review Petition is filed requesting the Court to review the said order and to set aside the order regarding sentence of imprisonment based on the compromise arrived between the parties subsequently. 8. He submits that in similar circumstances, the Apex Court in a recent judgment reviewed its earlier order and allowed the parties to settle the matter amicably resorting to Section 147 of the N.I.Act. He relies on decision reported in 2011 (1) DCR 381 SC. 9. First of all, the question would be whether this petition could be accepted. The petition undoubtedly is for reviewing the order dated 26.10.2009. The learned counsel accepts the legal position that there is no provision specifically engrafted in the Cr.PC for review. He relies on decision reported in 2011 (1) DCR 381 SC. 9. First of all, the question would be whether this petition could be accepted. The petition undoubtedly is for reviewing the order dated 26.10.2009. The learned counsel accepts the legal position that there is no provision specifically engrafted in the Cr.PC for review. But he submits that such a relief could be granted in exercise of inherent power under Section 482 of the Cr.P.C. The question is as to whether the revisional or inherent power conferred by Section 482 of the Cr.P.C. is of such a nature as to review a final order passed by this Court which does not come within the ambit of Section 362 of Cr.P.C. There could be no doubt about this legal position that under the Cr.P.C, a review is legally impermissible but the courts can correct the clerical error or mathematical error under the provisions of Section 362 of Cr.P.C. 10. Learned counsel has further relied on the decision of the Division Bench of this Court in the case of Biyamma W/o. Mohamad, (AIR 1963 MYSORE 326 V 50 C 72). The Division Bench of this Court has reviewed its judgment disposing of the appeal exercising the power under Section 482 of the Cr.P.C. 11. But the circumstances in which such power was exercised by this Court needs to be examined. 12. Before the Division Bench, there was a criminal appeal against conviction by the accused. Grounds against conviction were that accused were poor and legal assistance was provided by the State. During the trial, one of the accused who was a woman was found guilty and sentenced to suffer an imprisonment for life. Accused No.2 was acquitted. Against the said conviction, she was in appeal but one of the counsel appearing on behalf of the Legal Aid Services was not diligent. The learned counsel for her represented the Court that the counsel appointed by the trial Court to defend the accused had no enough time to acquaint himself about the facts of the case. Therefore, the counsel who appeared for the accused during the trial was not fully aware of the facts of the case and he had sought time which the trial Court had declined. The accused was not properly defended. Hon’ble Division Bench noticed such ground was enough to show deprival of opportunity to the accused to fully defend herself. Therefore, the counsel who appeared for the accused during the trial was not fully aware of the facts of the case and he had sought time which the trial Court had declined. The accused was not properly defended. Hon’ble Division Bench noticed such ground was enough to show deprival of opportunity to the accused to fully defend herself. Under such circumstances, the conviction was set aside and the appeal was allowed. Later, on behalf of the State, a petition was filed before the same Bench requesting it to reconsider or review its Judgment as there was total mis-representation of facts. It was brought to the notice of the Bench that the accused was duly represented and that the grounds on which the appeal was allowed was actually incorrect. The question then was since the appeal was disposed on finally and conviction was set aside, was it amenable to review by the same Bench in exercise of power under Section 362 of the Cr.P.C. The Division Bench considered the legal propositions and with reference to Section 361A, 369, 424 and 430 of Cr.P.C. held review was permissible on the principle of maxim “actus curiae neminem gravabit”. The Division Bench observed thus: “Under S.430, though the judgment shall not be open to any further appeal, the powers of interference otherwise than in appeal are not taken away. The absence of prohibition cannot, however, be considered as a conferment of power. Unlike in the Civil Procedure Code, there is no provision in the Criminal Procedure Code conferring power on the Criminal Courts to alter or review their judgments or orders. It is, however, a cardinal principle of administration of justice that an erroneous act of the Court shall not prejudice any party. This Rule is embodied in the well known maxim “actus curiae neminem gravabit” under which every Court whether Civil or Criminal must in the absence of express provision to the contrary be deemed to possess as inherent on its very constitution all such powers as are necessary to do the right and to undo a wrong in the course of administration. If need be para 5, 6 and 7” 13. On that basis, the Division Bench of this Court set aside its judgment and virtually reversed the judgment by confirming the conviction. If need be para 5, 6 and 7” 13. On that basis, the Division Bench of this Court set aside its judgment and virtually reversed the judgment by confirming the conviction. That is being cited here as a binding precedent in this Court to seek review of the final orders passed in a criminal proceeding referred to above. Needless to say that the judgment of the Division Bench of this Court could be taken as impliedly over-ruled by the judgment of the Apex Court in the case of State of Orissa vs. Ramachander Agarwala etc. (AIR 1979 SUPREME COURT 87) wherein considering the conspectus of the provisions of section 369, 324, 430, 561 of Cr.P.C. 1898 and the provisions of amended CPC, 1976. Apex Court held thus: “Once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code which would enable the High Court to review the same or to exercise revisional jurisdiction. Section 369 and 424 do not restrict the prohibition under Section 369 to the Trial Court alone. The purpose of S.424 is to prescribe mode of delivering the judgment, the language and the contents of the judgment, while Section 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 the prohibition imposed under Section 369 prohibiting the Court from altering or reviewing its judgment when once it has signed it. The provisions of Section 561-A cannot be invoked for exercise of a power which is specifically prohibited by the Code.” The High Court like other courts covered by the Cr.P.C. is prohibited to review the judgment. Except for the clerical error or mathematical error under Section 362. The Apex Court in para 12 observed thus: “A reading of S.369 discloses that the Section prohibits all Courts when it has signed its judgment to alter or review the same except to correct a clerical error. Except for the clerical error or mathematical error under Section 362. The Apex Court in para 12 observed thus: “A reading of S.369 discloses that the Section prohibits all Courts when it has signed its judgment to alter or review the same except to correct a clerical error. While, regarding other Court, the prohibition is subject to any provision in the Code of Criminal or any provision of any other law in force, in the case of the High Court it is provided that the prohibition will be subject to the Letters Patent or other instrument constituting such High Court. Thus so far as the High Court is concerned, the prohibition against alteration and the review of the judgment will be subject to the Letters Patent or other instrument constituting such High Court. The Letters Patent of the High Courts of Bombay, Calcutta and Madras provide that the High Courts will have original criminal jurisdiction as well as the appellate criminal jurisdiction, as provided by Cls.22 to 24. Clause 26 provided that such point or points of law reserved under Cl.25 or on its being certified by the Advocate General that there is an error and that the points should be further considered, the High Court shall have full power to review the case. No other provision is found in the Letters Patent enabling the High Court to review its own judgment. No other instrument, relating to the power to review, in the constitution of the High Court, was brought to our notice. Giving the plain meaning to Sec.369, it is clear that no Court, subject to exceptions made in the Section, shall alter or review its judgment.” In the result, the Apex Court emphatically held that the High Court has no power to review its own final orders/Judgment in criminal proceedings by resorting to Section 482 of Cr.P.C. once it is a final order passed in a appeal or in a revision, it is conclusive. 14. Another judgment that could be referred to is in the case of MOTI LAL V. STATE OF MADHYA PREADESH (AIR 1994 SUPREME COURT 1544) where the Apex Court referring to provisions of Section 362 observed: “High Court has no jurisdiction under S.482 to alter its earlier judgment in view of S.362 of Cr.P.C.” IN CENTRAL BUREAU OF INVESTIGATION VS. DUNCANS AGRO INDUSTRIES LTD. CALCUTTA (1996 SUPREME COURT CASES (CRI) 1045). DUNCANS AGRO INDUSTRIES LTD. CALCUTTA (1996 SUPREME COURT CASES (CRI) 1045). The Apex Court took a view that High Court in exercise of power under Section 482 was justified in quashing the criminal prosecution initiated against the accused. This decision is not applicable for the simple reason that it does no deal with the case finally decided. In this decision the power of the High Court under Section 482 to quash the proceedings has been considered. Therefore, this decision is not applicable. 15. Now coming to the decision relied by the counsel, it must be noticed that the Hon’ble Apex Court’s order considered the petition filed fresh for review of the order passed in SLP. The facts considered are the petitioner who was convicted in the trial Court was in appeal. The appeal earlier also failed and he was in the High Court. The High Court dismissed the revision against which he was in SLP before the Hon’ble Supreme Court. The Apex Court disposed of the said SLP confirming the order of the trial Court and the order of the High Court. After disposal of the SLP, he applied to the Supreme Court to compound the offence referred to Section 147 of the N.I. Act. The Apex Court entertained his second petition styled as “Review petition”. Learned counsel has not mentioned as to under what provision, the said review was filed before Apex Court. However, Hon’ble Apex Court considering Section 147 is a salutary provision which should come to the benefit of the party applying for it allowed them to compound this offence. On that basis, the Apex Court has passed order disposing of the SLP permitting the parties to report compounding of the offence. 16. I am afraid the benefit of this decision cannot be given to the petitioner for the simple reason that petitioner is seeking review of the order confirming the conviction and the sentence which has reached finality. When there is a specific bar for review of judgments which finally disposed of the case, the question of review does not arise. Besides we are not exercising the power under Article 136 of the Constitution of India. This petition is under Section 482 of Cr.P.C., that provision has been considered by the Apex Court in rendition of the judgment in the case of STATE OF ORISSA V. RAM CHANDER reported in AIR 1979 SC 87 supra. 17. Besides we are not exercising the power under Article 136 of the Constitution of India. This petition is under Section 482 of Cr.P.C., that provision has been considered by the Apex Court in rendition of the judgment in the case of STATE OF ORISSA V. RAM CHANDER reported in AIR 1979 SC 87 supra. 17. Therefore when the decision under review has reached finality, I do not find any proposition laid down in this decision with reference to the provisions of Section 482 and 397 of Cr.P.C. permitting review. All that could be said is Hon’ble Supreme Court has considered the fact situation in that case and granted benefit to the petitioner and reviewed its order i.e., order in SLP but we are not dealing with similar situation. I am called upon by this petition to review the order passed in exercise of powers conferred under Section 397 or 482 of Cr.P.C. which has been specifically held to be barred. 18. In this view of the matter, office objection is upheld. The review petition is rejected.