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2023 DIGILAW 211 (CHH)

Neelmani Bariha S/o Satyanand Bariha v. State Of Chhattisgarh, Though District Magistrate

2023-04-21

SACHIN SINGH RAJPUT

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ORDER : Sachin Singh Rajput, J. 1. This petition under section 482 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) has been filed by the petitioner praying for the following relief:- “It is therefore, prayed that this Hon’ble Court may kindly be pleased to pass an order granting the petitioner further 15 days time to deposit the fine amount of Rs. 3,000/-, in the interest of justice. 2. The petitioner was convicted for an offence under Section 354 of the Indian Penal Code, 1860 (for short IPC) by the Judicial Magistrate First Class, Saraipali vide judgment dated 27.01.2010 in Criminal Case No. 69/2009. The petitioner was sentence to undergo one year rigorous imprisonment with fine of Rs.2,000/- and in default of payment of fine additional three months simple imprisonment was imposed. Being aggrieved by the judgment of conviction and imposition of sentence, the petitioner preferred an appeal before the learned 1st Additional Session Judge, Mahasamund (C.G.) which was registered as Criminal Appeal No. 43/2010. The learned appellate court vide its judgment dated 03.04.2010 allowed the appeal in part and reduced the one year rigorous imprisonment to six months however maintained the fine amount and default sentence. 3. Bing aggrieved by the aforesaid judgment, the petitioner preferred a revision under section 397 read with section 401 of the Cr.P.C. before this Court. The said revision was registered as Criminal Revision No. 189/2010. After hearing the counsel for the parties, this Court partly allowed the revision on 04.07.2022 and passed the following order :- “Accordingly, the sentence imposed on the applicant is reduced to the period already undergone by him. However, in lieu of reduction of sentence to the period already undergone, the fine amount is enhanced to Rs.5,000/- from that of Rs.2,000/- imposed by the Court below. Out of this enhanced amount Rs.3,000/- shall go the victim as compensation in terms of Section 357 CrPC. Order accordingly. Let this amount be deposited in the Court below within a period of three months from today. If the applicant fails to deposit of this amount within the time stipulated, he shall undergo further rigorous imprisonment of one month.” 4. Shri Kishore Narayan, learned counsel for the petitioner submitted that the order dated 04.07.2022 passed in Criminal Revision No. 189/2010 was not subject to challenge before Hon’ble Supreme Court and now it has attained finality. If the applicant fails to deposit of this amount within the time stipulated, he shall undergo further rigorous imprisonment of one month.” 4. Shri Kishore Narayan, learned counsel for the petitioner submitted that the order dated 04.07.2022 passed in Criminal Revision No. 189/2010 was not subject to challenge before Hon’ble Supreme Court and now it has attained finality. He further submitted that the order of the Hon’ble Court could not be communicated to the petitioner. He submitted that petitioner used to enquire about the case to his local counsel who unfortunately passed away on 06.06.2016. Therefore, the petitioner was not aware about the passing of the order by the Hon’ble Court. By the time the petitioner came to know about the order of the Hon’ble Court, the time granted by the Hon’ble Court for depositing the fine has lapsed. Though he tried to deposit the same but it was refused as the time for depositing the same has lapsed. Without causing any further delay he has filed this petition seeking extension of 15 days time to deposit the fine. There is no deliberate fault on his part and he is still ready and willing to deposit the fine as ordered by the Hon’ble Court. He submitted that in order to do justice, the petition may be allowed. He submitted that section 482 of Cr.P.C. give ample powers to this Court and in the ends of justice the petition may be allowed. He placed reliance of an order passed by this Court in Cr.M.P. No. 514 of 2916 dated 11.05.2016 in case of Jagannath Singh Thakur Vs. State of Chhattisgarh. In this case this Court has extended the time for depositing the fine. Lastly he submitted that if this court does not agree with the submissions and does not extend the time for depositing the fine, some observation with regard to section 68 of IPC may be made enabling him to pay the fine after the applicant surrenders before the learned trial court (JMFC, Saraipali). 5. Refuting to the submissions made by learned counsel for the petitioner, Shri Adil Minhaj, leaned Government Advocate and Shri Trivikram Nayak, learned pane lawyer for the respondent/state vehemently argued that the submissions made by the learned counsel for the petitioner cannot be accepted. They submitted that after passing the order in Criminal Revision No. 189/2010, this court has become functus officio. They submitted that after passing the order in Criminal Revision No. 189/2010, this court has become functus officio. This court can only alter the order as provided under section 362 of the Cr.P.C. They submitted that only clerical or arithmetical error can be corrected. They further submitted that extending the time for depositing the fine would amount to review of the earlier order passed, which is not permissible in the eyes of law. They made submission that power of section 482 of Cr.P.C. cannot be used to do an act which otherwise not permissible under Cr.P.C. They placed reliance in case of State of Madhya Pradesh Vs. Man Singh reported in (2019) 10 SCC 161 , Sooraj Devi Vs. Pyarelal and another reported in (1981) 1 SCC 500 , Simrikhia Vs. Dolley Mukherjee and Chhabi Mukherjee & another reported in (1990) 2 SCC 437 . 6. On 14.02.2023, Shri B.P. Sharma, Advocate was appointed as amicus curiae to assist the Court and address on the issue involved. Shri B.P. Sharma, Advocate learned amicus curiae with Ms. Sameeksha Gupta, Advocate made submissions supporting the instance of the learned counsel for the petitioner. They submitted that law with regard to payment of compensation to the victim has gone see through change. He further submitted that even if the convict has undergone default sentence on non-payment of fine, same can be collected. He submitted that if further time is granted to the petitioner to deposit the fine, it will not cause any prejudice to the state and compensation would be paid to the victim in compliance of the order dated 04.07.2022 passed by this Court in Criminal Revision No. 189/2010. He placed reliance on a judgment of the Hon’ble Supreme Court in case of Kumaran VS. State of Kerala and another reported in (2017) 7 SCC 471 . 7. I have heard learned counsel for the parties, considered their rival submissions. 8. The issue before this Court is whether after an order is passed deciding the Criminal Revision directing depositing of fine within a stipulated time, in exercise of power under section 482 Cr.P.C., this Court can pass an order extending time to deposit the fine. 9. Section 362 and 482 of the Cr.P.C. are relevant and is quoted herein below:- “362. The issue before this Court is whether after an order is passed deciding the Criminal Revision directing depositing of fine within a stipulated time, in exercise of power under section 482 Cr.P.C., this Court can pass an order extending time to deposit the fine. 9. Section 362 and 482 of the Cr.P.C. are relevant and is quoted herein below:- “362. Court not to after judgement.- 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.” “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.” The provisions contained in section 362 of Cr.P.C. envisages once the Court has signed a judgment or final order disposing of a case it cannot alter or review the same except to correct a clerical or arithmetical error. 10. The Hon’ble Supreme Court in case of State of Madhya Pradesh Vs. Man Singh (Supra) has held as under:- “7. It is well settled law that the High Court has no jurisdiction to review its order either under Section 362 or under Section 482 of CrPC. The inherent power under Section 482 CrPC cannot be used by the High Court to reopen or alter an order disposing of a petition decided on merits 2. After disposing of a case on merits, the Court becomes functus officio and Section 362 CrPC expressly bars review and specifically provides that no Court after it has signed its judgment shall alter or review the same except to correct a clerical or arithmetical error. Recall of judgment would amount to alteration or review of judgment which is not permissible under Section 362 CrPC. It cannot be validated by the High Court invoking its inherent powers.” 11. In case of Hari Singh Mann Vs. Harbhajan Singh Bajwa and others reported in (2001) 1 SCC 169 Hon’ble Supreme Court observed as under:- “10. Recall of judgment would amount to alteration or review of judgment which is not permissible under Section 362 CrPC. It cannot be validated by the High Court invoking its inherent powers.” 11. In case of Hari Singh Mann Vs. Harbhajan Singh Bajwa and others reported in (2001) 1 SCC 169 Hon’ble Supreme Court observed as under:- “10. 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 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 in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. ...” 12. Similar law has been laid down by the Hon’ble Supreme Court in cases of Sooraj Devi (Supra) and Simrikhia (Supra). Thus legal position is in this regard is well settled that only clerical and arithmetical errors could be corrected and court cannot review its order exercising inherent power under section 482 if Cr.P.C. Argument advance by the learned counsel for the petitioner and learned amicus curiae does not hold water in light of the above authoritative pronouncement. Hence in considered view of this Court the petitioner is not entitled to the relief claimed. The petition has no merit and is liable to be dismissed. 13. The argument advanced by the learned counsel for the petitioner with regard to application of section 68 of the IPC requires consideration. For ready reference section 68 of IPC is quoted below:- “68. Imprisonment to terminate on payment of fine.- The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.” 14. In case of Abdul Gani Vs. The State of Madhya Pradesh reported in 1950 SCC OnLine MP 119 : AIR 1951 Nag 342 Hon’ble Nagpur High Court observed as under:- “6. In case of Abdul Gani Vs. The State of Madhya Pradesh reported in 1950 SCC OnLine MP 119 : AIR 1951 Nag 342 Hon’ble Nagpur High Court observed as under:- “6. When a person undergoes imprisonment in default of payment of fine, it is obvious that imprisonment can come to an end in one of these three ways: efflux of time, payment of fine or remission of fine….…” 7. There is also an additional reason why we think that this petn. must fail. The imprisonment which a person is ordered to undergo for non-payment of fine is only a contingent imprisonment. By paying the fine, before the substantive term of imprisonment comes to an end, a person can well avoid undergoing the sentence in default of payment of fine……..” 15. With the above observation this petition is dismissed. 16. Certified copy as per rules.