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Tripura High Court · body

2016 DIGILAW 380 (TRI)

Swadesh Debbarma v. Kamala Bangcher

2016-11-16

S.TALAPATRA

body2016
ORDER : Heard Mr. S. Bhattacharjee, learned counsel appearing for the petitioner as well as Ms. R. Purkayastha, learned counsel appearing for the respondent No.1, the complainant and Mr. A. Ghosh, learned Public Prosecutor appearing for the respondent No.2-State. 2. By this petition filed under Section 482 of the Cr.P.C., the petitioner has urged for exercising the inherent jurisdiction of the court for quashing and setting aside the judgment and order dated 08.09.2016 passed by this court in Crl. Rev. Pet. No.67 of 2014 in view of the memorandum of settlement arrived at between the petitioner and the respondent No.1. 3. The solitary and the most important question that has become imperative for decision in this case is whether in view of Section 147 of the Negotiable Instruments Act, 1881 the bar as provided under Section 362 of the Cr.P.C. can be waived in exercise of power provided under Section 482 of the Cr.P.C. Section 147 of the Negotiable Instruments Act, 1881 provides as under:- “147. Offences to be compoundable.–Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.” 4. The admitted position is that the petitioner had been initially convicted by the trial court for committing of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 by the judgment and order dated 12.08.2013 as the cheque dated 23.09.2010 for an amount of Rs.1,00,000/- (Rupees one lakh) only was dishonoured by the Tripura State Co-operative Bank Ltd. The said order of conviction passed by the trial court was challenged by filing an appeal being Crl. Appl. No.17 of 2013 in the court of the Addl. Sessions Judge, North Tripura, Kamalpur now Unakoti Judicial District. By the judgment and order dated 13.06.2014 the said appeal was dismissed observing as under: “10. I have scrutinized the whole evidence on record land all other connected exhibits. Considering all it seems to me that Ld. Trial Court convicted the appellant and sentenced on the basis of doubtful evidence. Sessions Judge, North Tripura, Kamalpur now Unakoti Judicial District. By the judgment and order dated 13.06.2014 the said appeal was dismissed observing as under: “10. I have scrutinized the whole evidence on record land all other connected exhibits. Considering all it seems to me that Ld. Trial Court convicted the appellant and sentenced on the basis of doubtful evidence. I also bear in mind the case law report in (2009)6 SCC 72 Raj Kumar Khurana vs. State of (NCT of Delhi) and another, S.138-Cheque dishonoured as cheque reported as lost-Whether constitutes an offence under S.138-Held, S.138 creates a legal fiction of deemed commission of offence when a cheque is dishonoured either due to insufficiency of funds or the amount mentioned in the cheque exceeds the amount arranged to be paid from a particular account by an agreement with the bank. The fiction does not extend to lost cheque. Hence dishonour of cheque on this ground does not constitute an offence under S.138.” 5. Thereafter, by carrying out a criminal revision petition being Crl. Rev. P. No.67 of 2014 the said judgment and order dated 13.06.2014 was challenged. By the judgment and order dated 08.09.2016 this court dismissed the said petition on elaborate discussion of the evidence vis-a-vis the grounds of objection. It has been observed in the said judgment dated 08.09.2016 as under:- “In the circumstances as above, the story as projected by the accused person does not appear at all probable or believable but the prosecution’s version has been corroborated by the circumstances and the testimonies of PWs-2 & 3 that PW-1 advanced a loan of Rs.1,00,000/- to the accused with an assurance that would be repaid on 22.09.2010. Thus, according to this Court, when a cheque was issued in discharge of the said liability, it has to be held that complainant fully discharged her burden and therefore, in the circumstances, when the accused person is totally failed to rebut, the presumption has to be drawn under Section 139 of the N.I. Act. This Court is not left with any other alternative but to hold that the complaint has proved her case to the hilt land accordingly, the accusation for committing the offence punishable under Section 138 of the N.I. Act has adequately been proved. This Court is not left with any other alternative but to hold that the complaint has proved her case to the hilt land accordingly, the accusation for committing the offence punishable under Section 138 of the N.I. Act has adequately been proved. This Court is constrained to observe that the way the Additional Sessions Judge has reversed the judgment of conviction without analysis, reasons or interpretation of law is tantamount to discarding the legal evidence. Hence, the impugned judgment as passed by the appellate court is set aside. The judgment of conviction and order of sentence as passed by the trial court is restored.” 6. When this court directed the petitioner to surrender before the court of the Sub-Divisional Judicial Magistrate (the SDJM) Kanchanpur, Unakoti Judicial District [the trial court] by 30.11.2016 the petitioner filed this application which is under consideration now before this court. By this petition, the settlement between the parties has been propagated and urged that in exercise of the power under Section 147 of the Negotiable Instruments Act, 1881 this court has sufficient jurisdiction to accept the composition [compounding] of the offence by the complainant and discharge the petitioner from the criminal liability. Consequently, this court also may embark on to quash the judgment of conviction and order of sentence. As stated earlier that the basic shaft of the controversy lies on whether in view of Section 362 of the Cr.P.C. this court can exercise its inherent jurisdiction to compound the offence invoking the provisions of Section 147 of the Negotiable Instruments Act, 1881. 7. Mr. Bhattacharjee, learned counsel for the petitioner has strenuously argued that the bar under Section 362 of the Cr.P.C. in the changed circumstances can be waived by this court placing his reliance on a few decisions of the apex court and some other high courts. In Mosst. Simrikhia vs. Smt. Dolley Mukherjee alias Smt. Chabbi Mukherjee and another reported in AIR 1990 SC 1605 the apex court has clearly observed that:- “If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent power in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there is no such changed circumstance and the decision has to be arrived at on the facts that existed as on the date of earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under section 362.” It has been further observed in Mosst. Simrikhia (supra) that:- “The inherent jurisdiction of the High Court cannot be invoked to override bar of review under section 362. It is clearly stated in Sooraj Devi v. Pyare Lal, [1981] 1 SCC 500 that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power.” 8. In D. Simpson vs. S. T. Perumal [Judgment and order dated 02.04.2014 in Crl. O.P. Nos.8352 and 6556 of 2014] the Madras High Court has observed as under:- “18. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. There is also some support for the apprehensions raised by the learned Attorney General that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding, albeit during the later stages of litigation thereby contributing to undue delay in justice delivery. The problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute. The problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute. Furthermore, the written submissions filed on behalf of the learned Attorney General have stressed on the fact that unlike Section 320 CrPC, Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court. 19. As mentioned earlier, the learned Attorney General s submission is that in the absence of statutory guidance, parties are choosing compounding as a method of last resort instead of opting for it as soon as the Magistrates take cognizance of the complaints. One explanation for such behaviour could be that the accused persons are willing to take the chance of progressing through the various stages of litigation and then choose the route of settlement only when no other route remains. While such behaviour may be viewed as rational from the viewpoint of litigants, the hard facts are that the undue delay in opting for compounding contributes to the arrears pending before the courts at various levels. If the accused is willing to settle or compromise by way of compounding of the offence at a later stage of litigation, it is generally indicative of some merit in the complainant s case. In such cases it would be desirable if parties choose compounding during the earlier stages of litigation. If however, the accused has a valid defence such as a mistake, forgery or coercion among other grounds, then the matter can be litigated through the specified forums. 20. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate, First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal. In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)(a) CrPC; thereafter a revision to the High Court under Sections 397/401 CrPC and finally a petition before the Supreme Court, seeking special leave to appeal under Section 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation. Thus, in case of conviction there will be four levels of litigation. In the case of acquittal by JMFC, the complainant could appeal to the High Court under Section 378(4) CrPC, and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings. 21. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed: THE GUIDELINES (i) In the circumstances, it is proposed as follows: (a) That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the court deems fit. (c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. 22. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. 22. Let it also be clarified that any costs imposed in accordance with these Guidelines should be deposited with the Legal Services Authority operating at the level of the court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate s Court or a Court of Session, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority." 9. Gujarat High Court in Kirpal Singh Pratap Singh Ori vs. Salvinder Kaur Hardip Singh Lobana reported in 2004 Cr.L.J. 3786 has observed that:- “The offence punishable under section 138 NI Act is not an economic offence within the meaning of the economic offence so far as the applicability of Limitation Act 1974, but still it is an offence falling within the compass of offences against property within the meaning of Chapter XVII of Indian Penal Code. Without entering into the point whether existence of mensrea is required to be brought on record legally to bring home the charge against the accused of the offence under section 138 of NI Act, at least can be inferred that the intention of legislature while inserting section 147 of the N.I. Act was clear that the aggrieved party can compound the offence. On a plain reading of section 147 of NI Act, it is clear that the same does not confer any obligation to obtain permission for entering into a compromise or to compound the offence.” It has been further observed in Kirpal Singh Pratap Singh Ori (supra) as under:- “Merely because the litigation has reached to a revisional stage or that even beyond that stage, the nature and character of the offence would not change automatically and it would be wrong to hold that at revisional stage, the nature of offence punishable under section 138 of the NI Act should be treated as if the same is falling under table-II of section 320 IPC. It will be difficult to accept the proposition put forward by Ms. It will be difficult to accept the proposition put forward by Ms. Joshi learned APP that even if the offence made punishable under IPC and reference to section 1 of section 320 i.e. table I shown in section 320 Cr.P.C. it cannot be compounded without prior permission.” 10. In reference to the offence under Section 138 of the Negotiable Instruments Act, 1881 read with Section 147 of the said Act the parties are at liberty to compound the matter at any stage even after dismissal of the revisional application. Even a convict undergoing imprisonment with the liability to pay the amount of fine imposed by the court and/or under an obligation to pay the amount of compensation if awarded as per the scheme may be compounded from the liability of sentence. The complainant i.e. the person or persons as affected, thus can pray to the court that the accused on compounding of the offence may be released by invoking jurisdiction under Section 482 Cr.P.C. It has been also observed that if all the parties are asked to approach the apex court then what will be the situation is a question which is required to be considered with the background of another progressive and pragmatic principle accepted by our courts that if possible, the parties should be provided justice at the door step. The phrase ‘justice at the door step’ has taken this court to think to a conclusion that it can be considered and looked into as one of the special circumstances for purpose of compounding the offence under Section 147 of the Negotiable Instruments Act, 1881. 11. Mr. Bhattacharjee, learned counsel has heavily relied on the said proposition of the Gujarat High Court. In another decision, the Madhya Pradesh High Court [O.T.G. Global Finance Ltd. and Ors. vs. Mohan Mandelia and Anr.] has observed in the similar line as reflected in the following passages:- “22. The Court is also aware of other principle of law that when a thing is required to be done in a particular way (provided under a law or rules framed thereunder) then it should be done in that manner only. But when the jurisdiction of this Court being very wide under Article 226 of the Constitution of India read with third part of Section 482, Cr.P.C. is invoked, the Court can bring legal resolution. But when the jurisdiction of this Court being very wide under Article 226 of the Constitution of India read with third part of Section 482, Cr.P.C. is invoked, the Court can bring legal resolution. If all parties are asked to approach the Apex Court then, what will be situation, is a question which is required to be considered in the back ground of another accepted progressive land pragmatic principle that, if possible, the parties should be provided justice at the door step. Of course, the parties compounding the offence under Section 138 of N.I. Act obviously are bound to satisfy the conscious of the Court on facts, when the jurisdiction under article 226 of the Constitution of India read with Section 482, Cr.P.C. is invoked with readiness and willingness to pay the reasonable amount of costs, if awarded while dealing with such petitions. 23. As discussed above, the Court is inclined to hold accordingly only because there is no formal embargo in Section 147 N.I. Act. This principle would not help any convict in any other law where other applicable independent provisions are existing as the offence punishable under Section 138 of the N.I. Act is distinctly different from the normal offences made punishable under Chapter XVII of I.P.C., (i.e., the offences qua property). In the circumstances, it is hereby declared that the compromise arrived between the parties to this litigation out of Court is accepted as genuine. Necessarily the conviction and sentence under Section 138 of the N.I. Act stands annulled as this Court intends, otherwise to secure the ends of justice as provided under Section 482, Cr.P.C. Obviously the order dismissing revision petitions would not have any enforceable effect.” 12. Mr. Bhattacharjee, learned counsel has therefore urged this court to interfere with the impugned judgment and order on accepting the compounding of the offence for which the petitioner has been convicted. In K.M. Ibrahim vs. K.P. Mohammed and another reported in (2010) 1 SCC 798 , the apex court having referred to Vinay Devanna Nayak vs. Ryot Sewa Sahakari Bank Ltd. reported in (2008) 2 SCC 305 has observed that once a person is allowed to compound a case under Section 147 of the Negotiable Instruments Act, 1881, the conviction under Section 138 of the said Act should also be set aside. In Vinay Devanna Nayak (supra) similar issue was raised and after taking note of the provisions of Section 320 Cr.P.C. the apex court held that since the matter had been compromised between the parties and payments had been made in full and final settlement of the dues of the Bank, the appeal deserved to be allowed and the appellant was entitled to acquittal. Consequently, the judgment of conviction and order of sentence in that case was set aside. 13. In K. M. Ibrahim (supra) it has been further observed that as far as the non-obstante clause in Section 147 of the 1881 Act is concerned, the 1881 Act being a special statute, the provisions of Section 147 will have an overriding effect over the provisions of the Code relating to compounding of offences. Similar view has been expressed by the apex court in Damodar S. Prabhu vs. Sayed Babalal H. reported in (2010) 5 SCC 663 . Both in K. M. Ibrahim (supra) and Damodar S. Prabhu (supra), in order to exercise its jurisdiction under Article 136 and 142 of the Constitution for undoing the conviction by allowing the compounding of the offence under Section 147 of the Negotiable Instruments Act, 1881. The decisions of Madras High Court, Gujarat High Court and Madhya Pradesh High Court are the matter of constructing jurisdiction under the garb of taking the justice to the door and which perhaps is not consistent with the provisions under Section 362 of the Cr.P.C. This court in a decision in Sajal Das vs. State of Tripura and Anr. [judgment and order dated 29.09.2016 delivered in Crl. Pet. No.40 of 2015] has considered that aspect of the matter a little bit elaborately. The relevant part of the said judgment is extracted for purpose of reference as under: 4. It can be noticed at the outset that in Ramphal and Others versus State of M.P., reported in (2000) 9 SCC 61 , the apex court has observed as under: "Neither before the original court, nor the High Court, any application for compounding had been filed. But in this case an application for compounding has been filed and it has been brought to our notice that in the counter case, on an application for compounding having been filed, the Court has already granted permission and the matter has been compounded. But in this case an application for compounding has been filed and it has been brought to our notice that in the counter case, on an application for compounding having been filed, the Court has already granted permission and the matter has been compounded. The complainant/informant has endorsed in the application for compounding and the counsel appearing for them also states that the matter has been amicably settled. Taking into account the fact that the occurrence is of the year 1987 and the parties have compounded the matter amongst themselves, we think, in the interest of justice, to accord permission of such compounding. We accordingly set aside the conviction and sentence and dispose of this appeal on the basis of compromise." In that case the conviction was under Sections 325/149, 322/149 and under Section 147 of the IPC. Section 325 of the IPC is no doubt an offence which can be compounded by the persons to whom hurt is caused. There is no dispute that for reconstruction of a family, the High Court may also in the appropriate cases allow the complainant to withdraw the allegations or to mitigate the same. But that has to be done during the pendency only. In Ramphal (supra), the apex court had permitted at the stage of appeal. Since the High Court has become functus officio after passing the judgment and order dated 17.01.2015 in Criminal Revision petition No. 44 of 2011, the question that arises in this petition whether this court can grant permission for withdrawal of the allegations to the complainant or not. Section 362 of the Cr.P.C. provides 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." 5. Mr. Somik Deb, learned counsel appearing for the petitioner has submitted that the inherent power as conferred on this court is wide enough to allow the prayer made by the petitioner for the cause of justice. For purpose of reference, the provisions of Section 482 of the Cr.P.C. is reproduced hereunder : "482. Mr. Somik Deb, learned counsel appearing for the petitioner has submitted that the inherent power as conferred on this court is wide enough to allow the prayer made by the petitioner for the cause of justice. For purpose of reference, the provisions of Section 482 of the Cr.P.C. is reproduced hereunder : "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 to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 6. Mr. Deb, learned counsel has relied on a decision of the apex court in Superintendent and Remembrancer of Legal Affairs, West Bengal versus Mohan Singh, reported in (1975) 3 SCC 706 , where the apex court had occasion to appreciate the ambit and scope of Section 561 of the Cr.P.C., 1898. That provisions of Section 568-A is substantively identical to the provisions of Section 482 of the Cr.P.C. 1973. It has been observed in Mohan Singh Singh (supra) as under : "The earlier application which was rejected by the High Court was an application under Section 561a of the code of criminal procedure to quash the proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But, thereafter, the criminal case dragged on for a period of about one and half years without any progress at all and it was in these circumstances that respondents Nos. 1 and 2 were constrained to make a fresh application to the High Court under Section 561-A to quash the proceeding. It is difficult to see how in these circumstances it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the Order made by it on the earlier application. It is difficult to see how in these circumstances it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the Order made by it on the earlier application. Section 561-A preserves the inherent power of the High Court to make such Orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked." [Emphasis added] 7. On the basis of such observation, it has been held by the apex court that the high court is perfectly entitled to do and if it is so done it cannot be said that there is any jurisdictional infirmity. Reliance has also been placed in Simrikhia versus Dolley Mukherjee and Chhabi Mukherjee and Another, reported in (1990) 2 SCC 437 . The apex court in that case has appreciated the interplay between Section 362 of the Cr.P.C. and Section 482 of the Cr.P.C. in the following terms : "3. The learned counsel for the appellant contended before us that the second application under Section 482 Cr.P.C. was not entertainable, the exercise of power under Section 482, on a second application by the same party on the same ground virtually amounts to the review of the earlier order and is contrary to the spirit of Section 362 of the Cr.P.C. and the High Court was, therefore, clearly in error in having quashed the proceedings by adopting that course. We find considerable force in the contention of the learned counsel. The inherent power under Section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362." [Emphasis added] 12. Thereafter having restated the law as enunciated in Smt. Sooraj Devi versus Pyare Lal and Another, reported in (1981) 1 SCC 500 it has been held that: "5. ...... that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code." To remove any ambiguity whatsoever the apex court reiterated the position of law as under: "25. As noted hereinearlier, Section 362 of the Code prohibits a court from making altercation in a judgment after the final order or judgment was signed by the court disposing of the case finally except to correct clerical or arithmetical errors." [Emphasis added] 14. Having referred to the decision of the apex court in Vishnu Agarwal versus State of Uttar Pradesh and Another, reported in (2011) 14 SCC 813 , Mr. Deb, learned counsel has contended that Section 362 of the Cr.P.C. cannot be considered in a rigid and hyper technical manner to defeat the ends of justice. 16. It is clear from the bare reading of the passages reproduced above that such power can been exercised only in a pending proceeding. Mr. Deb, learned counsel has referred to a decision contained in the judgment and order dated 18.11.2012 delivered in Criminal Petition No. 35 of 2013 [Sujit Saha @ Abu @ Debbarma & Anr. 16. It is clear from the bare reading of the passages reproduced above that such power can been exercised only in a pending proceeding. Mr. Deb, learned counsel has referred to a decision contained in the judgment and order dated 18.11.2012 delivered in Criminal Petition No. 35 of 2013 [Sujit Saha @ Abu @ Debbarma & Anr. versus State of Tripura] where the court has permitted to compound the offence in view of the decision in Gian Singh(supra). Mr. Deb, learned counsel has raised a pertinent question after referring that decision that such permission to withdraw allegations or to compound the offence in that context was granted after the criminal revision petition was disposed of by this court by the said judgment and order dated 17.07.2013. Mr. Deb, learned counsel has candidly submitted that it appears from the judgment that the fact of disposal or non-pendency was not brought to the notice of the court. But he has submitted that the said order also cannot be stated to be irregular as the said order passed by invoking the inherent powers of the court for securing substantive ends of justice. Thus, Mr. Deb, learned counsel has assertively submitted that this court may also take a similar view in this case. 17. From the other side Mr. A. Ghosh, learned public prosecutor appearing for the state has submitted that the decision in Sujit Saha (supra) cannot form a legal precedent as in that judgment, the fact of non-pendency was not brought to the notice of the court. However, Mr. Ghosh, has relied a few decisions to refute what Mr. Deb, learned counsel has advanced as the proposition of law. Having referred to a decision in Satya Narayan Sharma versus State of Rajasthan, reported in (2001) 8 SCC 607 , Mr. Ghosh, learned P.P has submitted that Section 482 of the Criminal Procedure Code does not provide that the inherent power can be exercised notwithstanding any other express provision. Thus, if an enactment contains a specific bar then the jurisdiction under the inherent power cannot be exercised to get over that statutory bar as has been observed in the cases of Madhu Limaye v. State of Maharashtra, reported in (1977) 4 SCC 551 , Janata Dal v. H.S. Chowdhary, reported in (1992) 4 SCC 305 and Indra Sawhney v. Union of India, reported in (2000) 1 SCC 168 . Mr. Mr. Ghosh, learned counsel has also referred Sooraj Devi (supra) and State of Kerala versus M.M. Manikantan Nair, reported in AIR 2001 SC 2145 , where the apex court having restated the interpretation in Hari Singh Mann (supra) has held that:- “Section 362 of the Code mandates that 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 an arithmetical error. The section 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 a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction.” [Emphasis added] 18. For supplementing his argument, Mr. Ghosh, learned Public Prosecutor has also referred a decision of the Kerala High Court in Sudheer Kumar @ Sudheer vs Manakkandi M.K. Kunhiraman reported in 2008 (1) KLJ 203 where it has been observed as under :- 16. Section 362 of Cr.P.C. prohibits the court after it has signed its judgment and final order is passed from altering or reviewing the same except to correct a clerical or arithmetical error. In Tanveer Aquil v. State of Madhya Pradesh and Anr. considered the issue. In that case, in appeal, court confirmed the conviction. After judgment was pronounced, parties compromised the matter and filed a petition to compound the matter. It was dismissed as High Court cannot entertain such a petition in view of the bar under Section 362. Apex Court confirmed the same as once judgment is pronounced, High Court has no jurisdiction to entertain an application for grant of permission to compound the offence. In such case proper case is to file appeal or SLP as the case may be and get necessary relief from the Supreme Court. In State of Kerala v. M.M. Manikantan Nair, 2001 CrLJ 2346 . Apex Court observed as follows: The Code of Criminal Procedure does not authorise the High Court to review its Judgment or Order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the court after it has signed its judgment or Order except to correct a clerical or arithmetical error. Apex Court observed as follows: The Code of Criminal Procedure does not authorise the High Court to review its Judgment or Order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the court after it has signed its judgment or Order except to correct a clerical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed. By the first Order, dated 31st May, 2000, the High Court rejected the prayer of the respondent for quashing the criminal proceeding. This order attained its finality. By the impugned Order, the High Court reversed its earlier Order and quashed the criminal proceeding for want of proper sanction. By no stretch of imagination it can be said that by the impugned order the High Court only corrected any clerical or arithmetical error. In fact the impugned Order is an Order of review, as the earlier Order was reversed, which could not have been done as there is no such provision under the Code of Criminal Procedure, but there is an interdict against it. This Court in Had Singh Mann v. Harbhajan Singh Bajwa and Ors., 2001 (1) SCC 169 . held that Section 362 of the Criminal Procedure Code mandates that 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 an arithmetical error and that this section 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 a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by the Court of competent jurisdiction. Once the order of conviction is confirmed in revision, the revisional court cannot review or alter the conviction in view of the specific bar under Section 362. The above statutory bar of review cannot be over-reached by filing clarification petition, modification petition or a petition under Section 482 or by resorting to any other innovative methods. Mandate of Section 362 has to be obeyed in letter and spirit. 17. The above statutory bar of review cannot be over-reached by filing clarification petition, modification petition or a petition under Section 482 or by resorting to any other innovative methods. Mandate of Section 362 has to be obeyed in letter and spirit. 17. Can the High Court reverse, alter or modify the conviction which became final by its own order passed in a revision petition, by using power under Section 482 of the Cr.P.C., which ultimately may amount to cancellation of conviction and sentence taking note of subsequent events like compounding of the case? We are of the opinion that inherent powers cannot be used to defeat the specific procedure prescribed in Cr.P.C. It is not a divide to overcome the specific bar under Section 326. After analysing various case laws also Apex Court relied in Central Bureau of Investigation v. Ravi Shankar Srivastave, IAS and Anr. powers of the High Court under Section 482 as follows: Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognized and preserves inherent powers of the High Courts. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognized and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist." restored powers of the High Court under Section 482 as follows: The learned judge in Sabu George's case (supra) relied on an observation of the Supreme Court in Mostt. Simrikhia v. Smt. Dolley Mukherjee alias Chhabi Mukherjee and Anr. for holding that Section 482 can be used to review the effect of an order if there is change in circumstances. Facts of that case are described in paragraph 1 of the above Apex Court judgment is as follows: In a case instituted on a private complaint by the appellant for offences under Sections 452 and 323, IPC, the Judicial Magistrate First Class, Patna, in exercise of power under Section 192(2), Cr.P.C. transferred the case for enquiry under Section 202 of the Code. The Court of the Second Class Magistrate, after examining witnesses, by order dated 22-3-1985 issued process to the two accused the respondents herein. The order of the Magistrate issuing process was challenged by the respondents under Section 482 before the High Court. The main ground urged before the High Court was that the First Class Magistrate had transferred the case without taking cognizance of the offence and the subsequent proceedings were, therefore, illegal. The order of the Magistrate issuing process was challenged by the respondents under Section 482 before the High Court. The main ground urged before the High Court was that the First Class Magistrate had transferred the case without taking cognizance of the offence and the subsequent proceedings were, therefore, illegal. The High Court, by its order dated 20-8-1988, dismissed the petition. It was found that there was no such illegality. The respondents again made Crl. Misc. Petition No. 2314/89 under Section 482, Cr.P.C. before the High Court alleging, inter alia, that the record of the proceedings on close scrutiny would indicate that the case had not been taken cognizance of before the transfer. The learned Single Judge accepted the case of the respondents and quashed the proceedings by the impugned order. The Apex Court considered the powers under Sections 482 and 362 and observed as follows: The inherent power under Section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. Therefore it was further observed as follows: If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362. It is also observed as follows: If a matter is covered by an express letter of law, the court cannot give a goby to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction. Finally after discussions and verdict and ratio decidendi of the case is stated in paragraph 6 of the judgment which is as follows: 6. Finally after discussions and verdict and ratio decidendi of the case is stated in paragraph 6 of the judgment which is as follows: 6. The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362. It is clearly stated in Sooraj Devi v. Pyare Lal that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The Court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials. The High Court has grievously erred in doing so. Even on merits, we do not find any compelling reasons to quash the proceedings at that stage. With the above findings appeal was allowed setting aside the order of the High Court. With great respect, we are of the opinion that a sentence in a judgment cannot be taken out from the context and used for laying down the preposition that if there is change in circumstances, by using inherent powers under Section 482 express bar under Section 362 can be got over. Learned Single Judge in Sabu George's case (supra) was of the' opinion that the above observations of the Supreme Court enable the High Court in effect, to set aside the conviction which is confirmed by its own order, taking note of subsequent compounding of the offence and it paragraph 26 it was observed as follows: 26. In the instant cases, when the revision petition was disposed of by this Court, this circumstance - that the parties settled the dispute and the complainant compounded the offence - was not there at all. It is a subsequent change in circumstance. The decision in Mostt. Simrikhia (supra) squarely applied. In the instant cases, when the revision petition was disposed of by this Court, this circumstance - that the parties settled the dispute and the complainant compounded the offence - was not there at all. It is a subsequent change in circumstance. The decision in Mostt. Simrikhia (supra) squarely applied. That was a case where an earlier application under Section 482 Cr.P.C. was dismissed, but still the Supreme Court held that a change in circumstances is sufficient to justify the invocation of the powers afresh under Section 482 Cr.P.C. notwithstanding the bar under Section 362 Cr.P.C. In the instant case, the powers under Section 482 Cr.P.C. have not been sought to be invoked earlier. Only the revisional powers were exercised. That is all the more the reason why under the changed circumstances the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. can be invoked. In the light of the dictum in Mostt. Simrikhia earlier decisions rendered and subsequent decisions, which do not refer to the said decision specifically and in which the opinion is expressed that the powers under Section 482 Cr.P.C. cannot be invoked after disposal of the revision in view of the bar under Section 362, cannot be held to lay down the law correctly. We are unable to accept the above view expressed in Sabu George's case, as in our opinion, no such conclusion can be made on relying on the decision of the Apex Court in Mostt. Simrikhia's case (supra). [Emphasis added] 19. Having regard to the law as expounded by the apex court, there is hardly any space for differently interpreting the ambit of inherent powers provided under Section 482 of the Cr.P.C. or to provide a substantive alternative discourse. When a specific provision, such as Section 362 of the Cr.P.C. prohibits alteration or review after signing of the final order or the judgment, by exercising the inherent powers, the High Court cannot act differently and as such, this court does not have any authority in view of Section 362 of the Cr.P.C., to recall its order, inasmuch as, recalling of the order in the circumstances would mean altering or reviewing the judgment and order dated 17.01.2015. The decision of this court in Sujit Saha (supra), as rightly pointed by Mr. A. Ghosh, learned Public Prosecutor appearing for the state, can not constitute a precedent. The decision of this court in Sujit Saha (supra), as rightly pointed by Mr. A. Ghosh, learned Public Prosecutor appearing for the state, can not constitute a precedent. The said order was made by this court without noticing the judgment and order dated 17.07.2013 delivered in Criminal Revision Petition No. 113 of 2004 whereby the said Criminal Revision Petition was finally disposed of.” 14. This court does not find any juridical basis to override the bar created by Section 362 of the Cr.P.C. for purpose of paving the way for compounding of the offence after the final judgment and order are delivered by this court. Hence, this court is constrained to observe that this endeavour for getting over the judgment and order dated 08.09.2016 passed in Crl. Rev. P. No.67 of 2014 on the basis of the purported compounding of the offence is bound to fail. Accordingly, this petition stands dismissed.