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2014 DIGILAW 978 (KER)

Kohinoor Saleem v. Jasintha Thomas

2014-12-01

K.RAMAKRISHNAN

body2014
ORDER K. Ramakrishnan, J. 1. This is an application filed by the respondent in the revision for correcting the error crept in the order by way of an inadvertent omission under S. 482 of the Code of Criminal Procedure. It is alleged in the petition that the petitioner herein has filed a private complaint under S. 138 of the Negotiable Instruments Act, which was taken on file as S.T. No. 1135/2007, which was tried before the Special Judicial First Class Magistrate Court, (Marad Cases), Kozhikode and after trial the revision petitioner was found guilty and she was convicted and sentenced to undergo imprisonment till the rising of court and also to pay Rs. 24,50,000/- as compensation to the complainant, in default to undergo simple imprisonment for six months under S. 357(3) of the Code and it was confirmed by the appellate court in Crl. A. No. 1017/2008 of Additional District and Sessions Court, Adhoc-II, Kozhikode and that was challenged by the revision petitioner by filing the above revision and this Court had confirmed the order of conviction and sentence granting 8 months time to the revision petitioner to pay the amount Till then directed the execution to be kept in abeyance. It is further ordered that if the revision petitioner did not pay the compensation amount within the said time, the Magistrate shall enforce the default sentence by issuing appropriate distress warrant and she has been directed to appear before court below on 27.5.2013 to receive the sentence of imprisonment till the rising of court. 2. The revision petitioner filed several applications for extension of time and ultimately she did not pay the amount. So the petitioner herein moved the court below for enforcing the default sentence by filing Crl. M.P. No. 2254/2014 and the learned Magistrate dismissed the application stating that the High Court when disposing the criminal revision only directed to enforce the default sentence by distress warrant alone, unless it is clarified, no warrant can be issued to arrest the accused. It is thereafter that the petitioner filed this application for correcting the mistake. 3. Heard the counsel for the petitioner and the 1st respondent in the application, who is the revision petitioner in the revision. 4. Considering the question involved, this Court has appointed Sri. Vibin Narayanan, Advocate of this Court as amicus curiae to help the court. 5. It is thereafter that the petitioner filed this application for correcting the mistake. 3. Heard the counsel for the petitioner and the 1st respondent in the application, who is the revision petitioner in the revision. 4. Considering the question involved, this Court has appointed Sri. Vibin Narayanan, Advocate of this Court as amicus curiae to help the court. 5. The counsel for the petitioner in this petition submitted that it is only a clerical mistake and if the mistake is apparent on the face of the record, which was not even intended by the court by going by the entire judgment, then it can be corrected by the court by invoking S. 482 of the Code and S. 362 is not a bar for the same. He had relied on the decision reported in Smt. Sooraj Devi v. Pyare Lal & Anr. (1981 KLT SN 21 (C. No. 38) SC : AIR 1981 SC 736 ). He had also submitted that on going through the order, it is clear that what was intended by the court is to enforce default sentence by issuing warrant but the word distress has been inadvertently used. So, that is the mistake which can be corrected by the court. 6. The counsel appearing for the 1st respondent relied on the same decision and also another decision of the Supreme Court in State of Kerala v. Manikantan Nair 2001 (3) KLT 80 (SC) : 2001 KHC 668), where it has been reiterated that except to correct a clerical or arithmetical mistake S. 362 prohibits a Court after it has signed its judgment or final order disposing a case from altering or reviewing the same and submitted that this prohibition is complete and no criminal courts can review its own judgment or order after it is signed even if it was wrongly decided. 7. Sri. Vibin Narayanan, amicus curiae, has submitted that if any mistake has been committed by the court, which causes prejudice to any of the parties, the same can be corrected by the court as no action of the court can cause any prejudice to any party. To that extent, power of review is not curtailed and inherent power can be used for that purpose. He had relied on the decision reported in A.R. Antulay v. R.S. Nayak & Anr. (1988) 2 SCC 602 ) and Awadh Bihari Singh & Ors. To that extent, power of review is not curtailed and inherent power can be used for that purpose. He had relied on the decision reported in A.R. Antulay v. R.S. Nayak & Anr. (1988) 2 SCC 602 ) and Awadh Bihari Singh & Ors. v. State of Bihar & Ors. (1993 Suppl. (4) SCC 594) and also M.M. Thomas v. State of Kerala & Anr. (2000) 1 SCC 666 ) in support of his submission. 8. Heard the Public Prosecutor also. 9. It is an admitted fact that the revision petitioner was found guilty under S. 138 of the Act and convicted and sentenced to undergo imprisonment till the rising of court and also to pay cheque amount of ` 24,50,000/- as compensation with default sentence of six months simple imprisonment under S. 357(3) of the Code by the trial court and the same was confirmed by the appellate court and this Court also confirmed the order of conviction and sentence passed by the court below but while disposing the revision it was mentioned as follows: "The judgments of the lower courts is confirmed. But the Magistrate shall keep the execution of the sentence in abeyance for a period of eight months, within which time, the petitioner shall pay the monetary part of the sentence to the complainant. If the petitioner does not pay the compensation amount within the said time, the Magistrate's Court shall enforce the default sentence by issuing appropriate distress warrant. The petitioner shall appear before the Magistrate for undergoing the sentence of imprisonment till the rising of the court on 27.5.2013." So it is clear from the above that what was intended by the learned Single Judge while disposing of the revision was that the order of conviction and sentence were confirmed but 8 months time was granted for payment of the amount and if the amount is not paid, directed the Magistrate to enforce the default sentence by issuing warrant and she has been directed to appear before the Magistrate for undergoing the substantive sentence till the rising of court on 27.5.2013, which was the period of expiry of 8 months provided by this Court for payment of fine. 10. Section 362 of the Code deals with power of review, which reads as follows: "362. 10. Section 362 of the Code deals with power of review, which reads as follows: "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." 11. What was provided under that section is giving power to the court to correct clerical or arithmetical mistake. In the decision relied on by the counsel for the revision petitioner as well as the counsel for the petitioner in this case. In Smt. Sooraj Devi v. Pyare Lal & Anr. (1981 KLT SN 21 (C. No. 38) SC : AIR 1981 SC 736 ), the Hon'ble Supreme Court has held that only clerical or arithmetical mistake crept in can be corrected by invoking the power under S. 362 of the Code and if there is any factual mistake which requires correction of the judgment as such, men that cannot be done by that court. Further in paragraph 4 of the judgment if has been observed that a clerical or arithmetical error is an error occasioned by an accidental slip or omission of the court. It represents that which the court never intended to say. It is an error apparent on the face of the record and does not depend for its discovery on argument or disputation. Further the same view has been reiterated in the decision reported in State of Kerala v. Manikantan Nair ( 2001 (3) KLT 80 (SC) : 2001 KHC 668). That was a case where a petition for quashing the complaint was filed on the ground that the prosecution is bad for want of sanction and after appreciating materials the court found that sanction is not required and dismissed the petition. Later on an application filed for rectifying the order, court found that sanction is required and rewritten the judgment and quashed the proceedings. That was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court though ultimately found that sanction is required but found that the order passed by the High Court rewriting the judgment on the basis of the application filed is not correct. 12. Further in the decisions relied on by the learned amicus curiae in A.R. Antulay v. R.S. Nayak & Anr. 12. Further in the decisions relied on by the learned amicus curiae in A.R. Antulay v. R.S. Nayak & Anr. (1988) 2 SCC 602 ) and Awadh Bihari Singh & Ors. v. State of Bihar & Ors. (1993 Supp. (4) SCC 594) the Hon'ble Supreme Court has held that any mistake committed by the court should not cause prejudice to the party and if that mistake is brought to the notice of the court, the court has duty to correct the same applying the principles "actus curiae neminem gravabit" = the act of court shall prejudice no man. Applying the above principles, it has to be considered as to whether the mistake mentioned in the order namely enforce default sentence by issuing appropriate distress warrant is intended to be mentioned as fine will have to be collected by issuing distress warrant or default sentence shall be enforced by issuing the conviction warrant Going by the order, it is clear that what was intended by the Single Judge while disposing the revision is that lower court judgments are confirmed. Once lower Court judgment is confirmed, then default sentence for non payment of compensation must follow after the time granted by this Court to pay the fine or compensation expired. It only postponed the enforcing of the default sentence till the time granted by this Court and not to change the mode of enforcing the default sentence for non payment of compensation. So it is clear from this, the word "distress" mentioned is only an inadvertent addition on the part of the court while intending to dispose of the revision by granting, 8 months time for payment of the amount. If amount is not paid within 8 months, the court will have to take appropriate steps to enforce the default sentence as provided under the Code. The only method by which it can be, done is by issuing the conviction warrant for enforcing default sentence and nothing more. So the words "distress" mentioned in the order is only a mistake committed by the court which should not cause prejudice to the party and that mistake when brought to the notice of the court has to be corrected by this Court. So the words "distress" mentioned in the order is only a mistake committed by the court which should not cause prejudice to the party and that mistake when brought to the notice of the court has to be corrected by this Court. So the order of this Court dated 18.9.2012 is recalled only to the extent of clarifying that the word distress warrant mentioned in the order means only appropriate warrant to be issued to enforce default sentence and not to issue distress warrant for realisation of the fine as provided under S. 421 of the Code. Three months time is granted to the revision petitioner to pay the amount. If amount is not paid within that time, then court below is directed to issue conviction warrant to enforce default sentence in accordance with law. Office is directed communicate this order to the concerned court immediately. I place my appreciation on record the way in which Sri. Vibin Narayanan, amicus curiae, has argued the case end helped this Court for disposing the case in accordance with law.