Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 220 (CHH)

Jeet Ram Rathiya v. State of Chhattisgarh

2014-06-16

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. Invoking the revisional jurisdiction of this Court under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (henceforth 'the Cr.P.C.'), the present two applicants, namely, Jeet Ram Rathiya and Rajendra Kumar have preferred the instant revision questioning the legality and validity of the order dated 19-5-2014 passed by the Additional Sessions Judge (FTC), Raigarh in MJC No. 176/2002, by which their application for extension of time to deposit the amount of fine, as directed by this Court in Criminal Appeal No. 391/2004 on 27-8-2012, has been rejected. The present two applicants were tried and convicted by judgment dated 29-3-2004 passed by 2nd Additional Sessions Judge, Raigarh in Sessions Trial No. 176/2002 for offence under Section 323 read with Section 34 of the Indian Penal Code (henceforth 'the IPC) and under Section 325 read with Section 34 of the IPC and they were sentenced therefor with rigorous imprisonment for 6 months and to pay fine of Rs. 100 each and with rigorous imprisonment for 2 years and to pay fine of Rs. 200 each, respectively. 2. This Court, by judgment dated 27-8-2012, partly allowed Criminal Appeal No. 391/2004, filed by the applicants and upheld the conviction under Section 323/34 of the IPC and under Section 325/34 of the IPC. However, the jail sentence awarded to them was reduced to the period already undergone by them and the amounts of fine imposed upon them were enhanced from Rs. 100 to Rs. 1,000 and from Rs. 200 to Rs. 5,000. The applicants were granted 2 months' time to deposit the amount of fine. The applicants did not deposit the amount of fine within the stipulated period and filed an application (MJC No. 176/2002) before the learned Additional Sessions Judge stating inter alia that they could not come to know about the judgment dated 27-8-2012 passed by this Court and consequently, they could not deposit the amount of fine as directed by this Court and, therefore, the period for deposit of amount of fine be extended. The learned Additional Sessions Judge, by the impugned order dated 19-5-2014, rejected the application holding that the consequence of not depositing the amount of fine is already mentioned in the judgment dated 27-8-2012, by which they are liable to undergo rigorous imprisonment for 2 months. 3. The learned Additional Sessions Judge, by the impugned order dated 19-5-2014, rejected the application holding that the consequence of not depositing the amount of fine is already mentioned in the judgment dated 27-8-2012, by which they are liable to undergo rigorous imprisonment for 2 months. 3. Shri Manoj Kumar Sinha, learned counsel appearing for the applicants would submit that though the applicants were regularly appearing before the Court of 2nd Additional Sessions Judge, Raigarh yet they could not come to know about the order of this Court directing them to deposit the amount of fine enhanced in place of the remaining part of jail sentence awarded to them. He would further submit that the default on their part is bona fide and, therefore, the learned Additional Sessions Judge has committed illegality in rejecting the application and as such the impugned order deserves to be set aside and the applicants be allowed to deposit the amount of fine ordered by the judgment dated 27-8-2012. 4. Per contra, Shri Rajesh Ranjan Sinha and Shri Aditya Sharma, learned Panel Lawyers appearing for the State/non-applicant would submit that the learned Additional Sessions Judge has rightly rejected the application as the criminal Court has no jurisdiction to review the judgment by virtue of Section 362 of the Cr.P.C. 5. I have heard learned counsel appearing for the parties and have also perused the judgment dated 27-8-2012 and the impugned order dated 19-5-2014 with utmost circumspection. 6. In order to decide the issue, it would be profitable to notice the operative part of the judgment dated 27-8-2012 rendered by this Court in Criminal Appeal No. 391/2004 (Jaglal Mahara and others v. State of Chhattisgarh), which reads thus: "18. In the result, the appeal is partly allowed. The conviction awarded to the appellants under Sections 323/34 and 325/34, IPC is upheld. However, the jail sentence awarded to them is reduced to the period already undergone by them. So far as the sentence of fine is concerned, the fine imposed for the offence under Section 323/34, IPC is enhanced from Rs. 100/- to Rs. 1,000/- and the fine imposed for the offence under Section 325/34, IPC is enhanced from Rs. 200/- to Rs. 5,000/-. The appellants are granted 2 months' time to deposit the above amount of fine, failing which, they shall be liable to undergo rigorous imprisonment for 2 months for each count. 100/- to Rs. 1,000/- and the fine imposed for the offence under Section 325/34, IPC is enhanced from Rs. 200/- to Rs. 5,000/-. The appellants are granted 2 months' time to deposit the above amount of fine, failing which, they shall be liable to undergo rigorous imprisonment for 2 months for each count. If any amount is already deposited towards fine, the same shall be adjusted in the amount of fine enhanced by this Court today. Out of the total amount of fine, if deposited, Rs. 7,000/- shall be paid to Chamarsingh alias Chamarram (PW-2) and Rs. 3,000/- shall be paid to Devnath (PW-1), as compensation." 7. A close perusal of the aforesaid paragraph of the judgment dated 27-8-2012 would show that this Court, while granting the appeal in part, reduced the jail sentence awarded to the applicants to the period already undergone by them and enhanced the amount of fine awarded to them and granted 2 months' time to deposit the same, failing which, they were ordered to be liable to undergo rigorous imprisonment for 2 months on each count. 8. A copy of the order of this Court was received by the Court of Session on 19-9-2012 and the M.J.C. was registered, but the applicants did not deposit the amount of fine. Ultimately, the Court of Session, by order dated 17-2-2014, issued warrant of arrest against the applicants. The applicants were produced before that Court, which led to filing of the application for extension of time for depositing the amount of fine. 9. The question that falls for consideration of this Court is whether the criminal Court can extend the time for depositing the amount of fine. At this stage, it would be profitable to refer to Section 362 of the Cr.P.C., which runs 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 or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." 10. A bare perusal of Section 362 of the Cr.P.C. would show that once the judgment in a criminal case is signed or the criminal case is finally disposed of, no Court shall either alter or review the same except to correct a clerical or arithmetical error. 11. A bare perusal of Section 362 of the Cr.P.C. would show that once the judgment in a criminal case is signed or the criminal case is finally disposed of, no Court shall either alter or review the same except to correct a clerical or arithmetical error. 11. Admittedly and undisputedly, the judgment of this Court enhancing the amount of fine was passed on 27-8-2012 and thereafter, it was communicated to the parties long back. But, the amount of fine was not deposited till the warrant of arrest was issued against the applicants on 17-2-2014 for suffering the sentence as directed by this Court. 12. In State of Orissa v. Ram Chander Agarwala, AIR 1979 SC 87 , the Supreme Court has clearly held that even a mere alteration of sentence would amount a review. It has been held as under: "18...... Whether the judgment is by the trial court or the appellate Court, Sec. 369 is universal in its application and when once a judgment is signed, it shall not be altered or reviewed except for correcting a clerical error. 20......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 Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction." 13. Following the decision of the Supreme Court in Ram Chander case (supra), the Full Bench of Punjab and Haryana High Court, in Ajit Singh and another v. State of Punjab, 1982 Cri.L.J. 1215, considered the question as to whether the time for deposit of amount of fine can be extended. It has been held that such an extension of time would involve a clear review of the earlier judgment on the point of sentence and it would be clearly barred by Section 362 of the Cr.P.C. The Full Bench of Punjab and Haryana High Court held as under: "10. Repelled on this basic legal stand. The learned counsel for the petitioner had then faintly attempted to contend that the relief of the extension of time for the deposit of fine at least would not amount to a review or alternation of the original judgment. Repelled on this basic legal stand. The learned counsel for the petitioner had then faintly attempted to contend that the relief of the extension of time for the deposit of fine at least would not amount to a review or alternation of the original judgment. In this context it deserves to be recalled that the appellate order whilst granting conditional relief had clearly directed that in the event of non-compliance of this condition the appellants would surrender and undergo the remaining portions of their substantive sentences. On the failure to comply with the condition of the payment of fine within four months the status quo ante would thus be restored and the substantive sentences of imprisonment would be resuscitated. Consequently the allowance of the application would involve a clear review of the earlier judgment on the point of sentence and setting aside the same the payment of fine would have to be substituted. This, as already noticed, would be clearly barred by the direct ratio in Ram Chander Agarwala's case (1979 Cri. L.J. 33) (SC) (supra)." 14. Very recently, in Kushalbhai Ratanbhai Rohit & Ors. v. The State of Gujarat, 2014 (7) Scale 219 : (AIR 2014 SC 229), the Supreme Court has clearly held that Section 362 of the Cr.P.C. puts an embargo to call, recall or review any judgment or order passed in criminal case once it has been pronounced and signed. Paragraph 4 of the decision reads thus: "4. We do not find any forcible submission advanced on behalf of the petitioners that once the order had been dictated in open court, the order to review or recall is not permissible in view of the provisions of Section 362, Cr.P.C. for the simple reason that section 362, Cr.P.C. puts an embargo to call, recall or review any judgment or order passed in criminal case once it has been pronounced and signed. In the instant case, admittedly, the order was dictated in the court, but had not been signed." 15. In the instant case, admittedly, the order was dictated in the court, but had not been signed." 15. Thus, considering the fact that the applicants failed to deposit the amount of fine enhanced by this Court while partly allowing the appeal, granting the application for extension of time to deposit the enhanced amount of fine would amount to a review of the judgment rendered in the appeal, which is impermissible by virtue of Section 362 of the Cr.P.C. and, therefore, the learned Additional Sessions Judge has committed no illegality in rejecting the application for extension of time. As a fall out and consequence of the aforesaid discussion, the revision deserves to be and is accordingly dismissed.