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2023 DIGILAW 1441 (AP)

Sathi Subbareddy v. State of Andhra Pradesh

2023-11-07

VENKATA JYOTHIRMAI PRATAPA

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JUDGMENT VENKATA JYOTHIRMAI PRATAPA, J. - This instant petition under Sec. 482 of Code of Criminal Procedure, 1973[In short 'Cr.P.C'] is filed by the Petitioner/Accused seeking to quash the judgment of conviction dtd. 14/6/2016 passed against him in C.C.No.649/2015 on the file of learned V Addl. Judicial Magistrate of First Class, Kakinada, [In short, 'trial court'] for the offence punishable under Sec. 138 of Negotiable Instruments Act, 1881.[In short, ' Act, 1881'.] 2. Heard Sri R.Siva Sai Swarup, learned counsel for the petitioner, Ms. D.Prasanna Lakshmi, learned Assistant Public Prosecutor representing the State and Sri Jangam Varun Roy, learned counsel for the Respondent No.2. 3. A rather interesting question is raised by the Petitioner seeking to quash judgment of conviction that is passed against him by the trial court. The peculiar circumstance of the case is, though trial court pronounced judgment convicting the petitioner, it could not pass sentence against the Petitioner since he failed to appear. Undisputed fact is that a non-bailable warrant is pending against the Petitioner on this aspect. 4. Learned Counsel for the Petitioner would submit that after pronouncement of the judgment of conviction, the complainant filed a full satisfaction memo before the trial court acknowledging the receipt of the amount in connection with C.C.No.649/2015. He would further submit that the trial Court ought to have acquitted the Petitioner by recording the full satisfaction memo. Learned Counsel for the Respondent No.2 sails alongwith the Petitioner. Point for Determination 5. Having heard the submissions of both the learned counsel, this Court has perused the material available on record. The point that would arise for determination is; "Whether this Court can quash the conviction orderby exercising jurisdiction under Sec. 482 of the Cr.P.C., when the trial court has not passed any sentence?" Determination by the Court 6. Before delving into the instant case, it is appropriate to chalk out certain settled principles of law in the exercise of jurisdiction under Sec. 482. Before delving into the instant case, it is appropriate to chalk out certain settled principles of law in the exercise of jurisdiction under Sec. 482. The provision which is placed in Chapter 37 of the Code reads as follows; Sec. 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." 7. The idea behind conferring inherent power to the High Court is to meet exigencies that may likely arise, where for a given issue the Cr.P.C. fails to provide a specific provision. To put it differently, no legislative enactment can be so complete a package to deal with the procedure concerning all causes that are likely to arise. It is for this reason that the Courts have certain inherent powers, in addition to the ones that are expressed by law, i.e., for the proper discharge of their functions and for effective administration of justice. 8. Inherent powers are, as the phrase suggests, inalienably present with the Court. They are not conferred, but are merely safeguarded and preserved by Sec. 482 to the High Court. This Sec. is a reminder that the High Court is not a mere court in law but also court of justice. Once a Court, be it civil or criminal is required to administer justice, it becomes inherently essential to have the necessary powers to perform such functions, vide "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsa esse non potest" (when the law gives a person anything, it gives him that without which it may not exist). Explaining this maxim, Halsbury's Laws of India (Criminal Procedure) provides the following;[Halsbury's Laws of India (Criminal Procedure, Vol 12(1)) 2nd Edition] "It is a well-established principle that whenever anything is required to be done by law, and it is found impossible to do that thing unless something not authorised in express terms be also done, then that something else will be supplied by necessary intendment and this is a principle of the common law embodied in the maxim quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsa non potest" 9. A bare perusal of Sec. 482 makes it clear that the Code envisages that inherent powers of the High Court are not limited or affected so as to make orders as may be necessary; (i) to give effect to any order under the Code or, (ii) to prevent abuse of the process of any Court or, otherwise (iii) to secure ends of justice. 10. A court while sitting in Sec. 482 jurisdiction is not functioning as a court of appeal or a court of revision. It is a trite proposition of law that in deciding criminal cases, courts should keep in mind that each case must rest on its own facts. No doubt, this Court has ample powers under Sec. 482 which are to be exercised ex debito justitiae, i.e., to do real and substantial justice. These powers must be invoked for compelling reasons of abuse of process of law or glaring injustice, which are against sound principles of criminal jurisprudence. Specific circumstances warranting invocation of powers under Sec. 482 have been strongly emphasized in a catena of decisions. To cite a few, State of Haryana & others v. Bhajanlal & others, 1992 Supp. (1) SCC. at paras 102 and 103, Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra & others, (2020) 10 SCC 180. at para 57. 11. It is no doubt true that the Hon'ble Apex Court in Ramgopal and another v. State of Madhya Pradesh, 2021 SCC OnLine 834. held that criminal proceedings that are non-heinous or predominantly private in nature, can be annulled irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction. This has to be exercised subject to circumstances surrounding the incident, way the compromise got arrived, nature and seriousness of offence and conduct of the accused, before and after incidence. Taking the strength of this decision, several High Courts have also exercised jurisdiction under Sec. 482 to record post-conviction settlements in non-heinous offences, subject to satisfaction of the ingredients for invocation. 12. In a criminal prosecution that ends in conviction, the judgment is said to be complete in all aspects only when the sentence is imposed on the convict, exception to this is the benefit provided under Sec. 360 of Cr.P.C. Bona fide litigants should contest the proceedings to their logical end. 12. In a criminal prosecution that ends in conviction, the judgment is said to be complete in all aspects only when the sentence is imposed on the convict, exception to this is the benefit provided under Sec. 360 of Cr.P.C. Bona fide litigants should contest the proceedings to their logical end. In the instant case, it is apt to mention that the Petitioner was found guilty for the offence punishable under Sec. 138 of Act, 1881 and the trial court pronounced the conviction. The court could not pass sentence because of his absence. The argument of the learned Counsel for the Petitioner holds no water, as after pronouncing the judgment of conviction, the trial court cannot reverse a conviction over into an acquittal. Once a Court signs its judgment or final order disposing of a case, it is not empowered to alter or review the same, except to correct a clerical or arithmetical error, vide Sec. 362 of Cr.P.C. 13. This Court while acting under Sec. 482in the circumstances of the present case, cannot set aside the conviction order and pass an order of acquittal in favour of the Petitioner, especially when a non-bailable warrant is pending and no sentence is passed due to his absence. This circumstance has a direct bearing on the bona fide of the party in invoking the inherent jurisdiction of this Court. Another way of putting this is, without bringing the proceedings to a logical end before the trial court i.e., by voluntarily absenting himself after conviction and before sentencing, thereby inviting a nonbailable warrant, the Petitioner approached this Court under Sec. 482.If the Court entertains such a practice, it would send a wrong indication to the administration of justice in criminal courts i.e., through invocation of Sec. 482 for compromise, to surpass the proceedings before the trial court during the period between passing of conviction order and of sentence. Such approach is sure to have wide ramifications on the functioning of the trial courts. 14. It is not a case where the offence under Sec. 138 is non-compoundable, Sec. 147 stipulates every offence under the Act, 1881 as compoundable. Even otherwise, in this case, when no compromise petition is filed before this Court, the question of this Court acting under Sec. 482 to convert the conviction to acquittal or to record a compromise does not arise. Even otherwise, in this case, when no compromise petition is filed before this Court, the question of this Court acting under Sec. 482 to convert the conviction to acquittal or to record a compromise does not arise. In this light, this Court does not find any circumstances to exercise jurisdiction under Sec. 482. 15. In that view of the matter, it is apposite to direct the Petitioner to voluntarily surrender before the trial court within a period of 1 (one) week from the date of receipt of this order. On such surrender, the trial court may pass an appropriate sentence, keeping in mind, the full satisfaction memo that is filed considering the compromise arrived between the parties, as a mitigating circumstance. 16. With the above direction, the Criminal Petition is disposed of. As a sequel thereto, miscellaneous petitions, if any, shall stand closed.