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2024 DIGILAW 1479 (ALL)

Sanjeev Gupta v. State of U. P.

2024-05-30

RAM MANOHAR NARAYAN MISHRA

body2024
JUDGMENT Ram Manohar Narayan Mishra, J. Instant recall application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to restore the Criminal Revision No.2618 of 2019, Sanjeev Gupta v. State of U.P. and another by recalling the order dated 6.12.2023 and 19.11.2023, passed in the said case in the interest of justice and equity. 2. The brief facts relevant for the present application under Section 482 Cr.P.C. are that the by means of criminal revision, the revisionist/ accused assailed the judgement of learned A.C.J.M., court no. 8, Ghaziabad in Criminal Case No. 75 of 2016 arising out of Case Crime no. 331 of 2013 under Sections 498-A, 323, 377 IPC and Section 4 of D.P. Act, P.S. Link Road, District Ghaziabad, whereby the revisionist has been convicted of charge under section 498-A, 323, 377 IPC and Section 4 of D.P. Act and was sentenced to two years rigorous imprisonment and Rs. 30,000/- fine for charge under Section 498-A IPC and five years rigorous imprisonment and Rs. 20,000/- fine for charge under Section 377 IPC, six months simple imprisonment and Rs. 500/- for charge under Section 323 IPC and one year simple imprisonment and Rs. 1,500/- fine for charge under section 4 D.P. Act and sentences of fine are followed by default stipulation; all the sentences were directed to run concurrently. 50% fine is directed to be paid as compensation to the victim/ informant. The revisionist assailed judgement of trial court in Criminal Appeal No. 129 of 2018 (Sanjeev Gupta v. State of UP) wherein criminal appeal is partly allowed to the extent that conviction for charge under section 498-A, 323, 377 IPC has been affirmed but his conviction and sentence for charge under section 4 of D.P. Act has been set aside. The sentence awarded by the trial court for charge under section 377 IPC has been modified to the extent that five years rigorous imprisonment for charge under section 377 IPC is reduced to four years keeping in view quantum of fine intact. The revisionist impugned both the orders passed by the courts below in criminal revision before this Court, which has been preferred under section 397/401 Cr.P.C. 3. The revisionist impugned both the orders passed by the courts below in criminal revision before this Court, which has been preferred under section 397/401 Cr.P.C. 3. The applicant in person appeared in present application under Section 482 Cr.P.C. on 22.3.2024, 14.5.2024 and the matter was finally heard on 10.5.2024, wherein the applicant, who is accused/convict in concerned criminal revision No.2618 of 2019 argued in person and learned AGA appearing for the State has advanced his arguments on behalf of the State. 4. The applicant filed his written submissions in support of his contention raised in present application. The crux of the submissions of applicant is that he was not heard in person in said in said criminal revision and it was decided to his detriment as his conviction recorded under Section 498-A and 323 IPC by learned trial court and affirmed by the appellate/session court has been re-affirmed by final order of this Court dated 6.12.2023, which is under challenged in present petition. He further submitted that at the time of hearing of revision on 27.5.2023, he was personally not present before this Court as he was held in jail custody and no intimation for appearance in the Court was given to him by this Court and, therefore, the opportunity of hearing accorded to the revisionist is empty formality due to non affording opportunity of personal hearing to the applicant, in person. He has been prejudicially affected as the bail granted to him in said criminal revision was cancelled by order dated 19.11.2022 and he was sent to jail custody. No personal appearance was afforded to him in said criminal revision by the Court for arguing the case despite written communications sent by him from jail. This Court was pleased to pass an order dated 15.5.2023 to the effect that "Office is directed to inform the revisionist immediately through Jail Authorities by Fax/e-mail about the order to engage an advocate of his choice till the next date of listing." On 27.7.2023, an order was passed to the effect that learned Amicus Curiae seek instructions from the revisionist with regard to the order dated 24.8.2021. Whereabouts of applicant in person seems to be not known as he was held in jail custody from 19.12.2023 to 24.12.2023, despite sufficient communication to the High Court with submission of no engagement of any legal assistance from any forum under any circumstance, in view of non affording of personal hearing to the applicant in said criminal revision, the principle of equity and natural justice were violated as the stand of the applicant was not properly presented by the Amicus Curiae before this Court whereas from the side of respondent his duly engaged counsel Mr. Nitin Gupta appeared and submitted his arguments. Learned AGA also supported the case of respondent No.2/defacto complainant. The bail granted to the applicant in said criminal revision vide order dated 9.7.2019 was cancelled by this Court vide order dated 19.11.2023 without giving him opportunity of hearing and no copy of order was provided to him. In spite of sending several applications to this Court from jail for recalling of said bail cancellation order dated 19.11.2022, on ground of non hearing, no action was taken thereon. He also prayed therein for his early release. He also submitted that he is a qualified chartered accountant and has been Company Secretary and he was posted as a Class-I Officer in Government of India at the time of alleged incident and has suffered greatly due to his protracted trial and subsequent conviction in the case, which is not based on sufficient evidence. He has lost his job. He lastly submitted that he received a written reply from the High Court, which is filed as Anenxure No.9 to the application, bearing date 5.7.2023, which reads as under:- "with reference to your representation application dated NIL requesting to recall the order dated 19.11.22 passed by the honourable High Court in the criminal revision 2618 of 2019 with which your bail was cancelled received to this court vide letter no.3657/2023 PG cell date 15/3/2023 of public grievance officer ministry of law and justice Government of India New Delhi. You are here by inform in the light of order date 12/6/2023 of the learned registrar general that you may approach the appropriate court to seek judicial remedy in your matter. Senior registrar (j) confidential" 5. You are here by inform in the light of order date 12/6/2023 of the learned registrar general that you may approach the appropriate court to seek judicial remedy in your matter. Senior registrar (j) confidential" 5. He also submitted that vide letter dated 22.3.2023 sent through registered post, he clarified this stand that he needed no legal aid and he prayed for recalling order dated 19.11.2022. With these submissions, he prayed for recall of the judgement and order dated 6.12.2023, passed in said criminal revision and restoration of said criminal revision to its original number and giving him an opportunity of personal hearing in the matter, so that he could effectively put-forth his case, as no offence is made out and proved against him including charge under Section 498-A and 323 IPC, for which the conviction has been affirmed. 6. Per contra, learned AGA submitted that the impugned judgement dated 6.12.2023 was passed by this Court after hearing learned Sri. Arvind Singh, learned Amicus Curiae, appearing for the revisionist/applicant and Sri. Sanjeev Gupta and Sri. Nitin Gupta, learned counsel for the respondent No.2 and learned AGA. The applicant could not address the Court in person in said criminal revision as he was held in jail custody at that time due to cancellation of his bail vide order dated 19.12.2022 and as this Court set aside his conviction and sentence for main charge under section 377 IPC and his conviction was affirmed and was sentenced to period already undergone for remaining charges under Section 498-A IPC and 323 IPC. He was released after passing of impugned judgement and order dated 6.12.2023 in said criminal revision. 7. This Court passed following order on 10.5.2024:- "Sri. Sanjeev Gupta, the applicant is present in person. The applicant submits that he has already served advance notice to learned AGA in compliance of order dated 22.3.2024 by this Court. Mr. Arvind Kumar Singh, Advocate appeared pursuant to the notice issued by this Court vide order 15.4.2024. He submits that he appeared before this Court in Criminal Revision No.2618 of 2019 as Legal Aid Counsel on behalf of the revisionist Sajeev Gupta. He further submits that he put forth the stand of revisionist before the Court at the time of final hearing of the case. He submits that he appeared before this Court in Criminal Revision No.2618 of 2019 as Legal Aid Counsel on behalf of the revisionist Sajeev Gupta. He further submits that he put forth the stand of revisionist before the Court at the time of final hearing of the case. However, he could not make personal contact with the revisionist as he was held in jail custody at that time and as far as his information is concerned, the revisionist was directed by this Court to engage any other counsel, if he so wishes of his choice. Per contra, the applicant submitted that this is absolutely wrong and no information was received by him when he was lodged in jail from this Court to engage some other counsel on his behalf. Order On Application for Audio Video Recording An application for recording of audio and video of proceeding of this Court of hearing of recall application moved by the applicant/ revisionist under Section 482 Cr.P.C. has been filed by the applicant. Heard the applicant in person and learned AGA appearing for the State. As the applicant has appeared in person before the Court and he is being heard at length and his written submissions are being taken on record, I find no good ground to allow the application for audio and video recording of the proceeding of the Court in respect of recall application filed by the applicant/convict, as stated above. Accordingly, present application stands dismissed. Order On Criminal Misc. Recall/Restoration Application Heard applicant in person on instant criminal misc. recall/restoration application as well as learned AGA for the State. The applicant laid emphasis on written submission which covers six points and summarized his stand to the effect that at the time of hearing of this case, he was held in jail custody and he was not summoned from jail at the stage of final hearing and instead a Legal Aid Counsel was heard in his place, which is not in consonance with principles of natural justice. He had prepared a voluminous paper book in support of his case and he was deprived to present his case at length in view of his non production from jail before this Court. He had prepared a voluminous paper book in support of his case and he was deprived to present his case at length in view of his non production from jail before this Court. He lastly submitted that no intimation was given to him from the Office of this Court regarding hearing of this case and probably his whereabouts were not on record of the case as he was shifted to one jail to other on three occasions." 8. From perusal of order sheet of Criminal Revision No.2618 of 2019, Sanjeev Gupta v. State of U.P. and Another, it appears that revisionist was sent to jail custody after judgement of appellate court dated 30.5.2019, whereby his conviction for charge under sections 498-A, 377, 323 IPC was affirmed with some modification in sentence. The revisionist was released on bail by order of this Court dated 9.7.2019 in present revision. However, the revisionist used to appear in person before this Court and moved several applications on one or other grounds. Several adjournments were taken by the revisionist as he was not inclined to previously to argue the case before this Court, even he moved an application with prayer to transfer the case to Hon'ble Apex Court or any other court which was found baseless and ultimately rejected. Sri. V.P. Srivastava, Senior Advocate, was appointed as Amicus Curiae but the revisionist declined to take his assistance. Thereafter, Sri. Arvind Kumar Singh was appointed as Amicus curiae vide order dated 19.11.2022. This Court observed in previous orders that conduct of the petitioner in the Court during course of arguments was wholly uncalled for and ultimately due to his non cooperation in the proceedings of the case, this Court taking strong exceptions to his conduct, cancelled the bail granted in revision to him by this Court, vide order dated 19.11.2022 and the revisionist was directed to be taken in custody and sent to Central Jail, Naini, Prayagraj and thereafter shifted to Central Jail, Ghaziabad in due court and was thereafter transferred to District Jail, Ghaziabad. The F.I.R. in present case was lodged at the instance of respondent no. 2 on 9.8.2013 at 19:05 hours vide Crime No. 331 of 2013 under Sections 498-A, 323, 504, 377 IPC and 3/4 D.P. Act and the investigating officer submitted charge-sheet after investigation with prayer to prosecute him in said charges. The F.I.R. in present case was lodged at the instance of respondent no. 2 on 9.8.2013 at 19:05 hours vide Crime No. 331 of 2013 under Sections 498-A, 323, 504, 377 IPC and 3/4 D.P. Act and the investigating officer submitted charge-sheet after investigation with prayer to prosecute him in said charges. The trial court acquitted the accused of charge under Section 504 IPC and convicted him for charge under Sections 498-A, 377, 323 IPC and Section 4 of D.P. Act. The first appellate court while deciding the criminal appeal preferred by the accused convict by the impugned judgement, acquitted him of charge under section 4 of D.P. Act but affirmed his conviction for charge under Section 498-A, 323, 377 IPC and further reduced his sentence awarded under Section 377 IPC from five years to four years. However, fine awarded in the judgement of trial court for said offence was kept intact. 9. The revisionist appears to have been held in jail custody for about one year in three different jails in connection with said criminal revision in different segments. 10. The criminal Revision No.2618 of 2019 was admitted on 9.7.2019 and accused applicant was enlarged on bail for charge under Sections 498-A, 377 and 323 IPC by orders of this Court, as he was convicted and sentenced by these charges by the orders of concurrent judgment and orders of courts below. On date of admission, Sri. Kirti Singh and Jitendra Singh appeared on his behalf. On 12.9.2019, the revisionist appeared in person in the case and Mr. Nitin Gupta appeared on behalf of the respondent No.2. The revisionist used to appear in person and moved various applications before the Court during pendency of revision. On 13.1.2020, the applicant appeared in person and stated before the Court that he has preferred a Transfer Application (Criminal) No.229 of 2019, which was dismissed by this Court while observing that applicant had made similar prayer in Transfer Application (Criminal) No.511 of 2018. which was heard and rejected by the Co-ordinate Bench of this Court vide order dated 26.3.2019. On request of the revisionist, the Court released the case vide order dated 13.1.2020 and directed to be listed before another Bench after obtaining nominations from Hon'ble The Chief Justice. The applicant filed supplementary affidavit on next date. The case was assigned to another Bench. On request of the revisionist, the Court released the case vide order dated 13.1.2020 and directed to be listed before another Bench after obtaining nominations from Hon'ble The Chief Justice. The applicant filed supplementary affidavit on next date. The case was assigned to another Bench. The revisionist appeared in person on 11.11.2020 but instead of putting forth his submissions on merits of the case, he prayed for transferring the case to the Court of Hon'ble The Chief Justice, as he was not ready to argue his case before any other Bench but the prayer was refused by the Bench as the concerned Bench was assigned with the case after obtaining nomination from the Hon'ble The Chief Justice. On 29.7.2021, 4.8.2021 and 12.8.2021, the revisionist appeared in person but did not argue the case. Some misc. application was filed by the application before Hon'ble Apex Court, which was disposed of by order dated 19.8.2021 with observation that "the petitioner, who appears in-person, is habituated to filing successive miscellaneous applications. The present Miscellaenous Application is misconceived and is accordingly dismissed. No further applications shall be entertained by the Registry of this Court in present proceeding at the behest of petitioner in person." Vide order dated 1.7.2021, Hon'ble Apex Court had directed listing of present revision expeditiously within one month under intimation to the Hon'ble Court. 11. As the applicant neither intended nor prepared to submit his arguments on merits on one or other grounds and keeping in view his stubborn, obstinate and un-supportive attitude, his bail was cancelled by the order dated 19.11.2022 passed by this Court and he was directed to be sent to jail custody. Even he failed to avail services of Senior Advocate, Sri. V.P. Srivastava, who was appointed Amicus Curiae on his behalf. On directions of this Court, Sri. Arvind Kumar Singh was appointed Amicus Curiae for the revisionist, as the he was held in jail custody vide order dated 19.11.2022. On 27.1.2023, Amicus Curiae was directed to seek instructions from the revisionist with regard to S.L.P. (Criminal) No.172 of 2021, pending in the Supreme Court, filed against order dated 24.8.2021. On directions of this Court, Sri. Arvind Kumar Singh was appointed Amicus Curiae for the revisionist, as the he was held in jail custody vide order dated 19.11.2022. On 27.1.2023, Amicus Curiae was directed to seek instructions from the revisionist with regard to S.L.P. (Criminal) No.172 of 2021, pending in the Supreme Court, filed against order dated 24.8.2021. In order dated 24.4.2023, it is observed that "some unidentified emails has been sent by the revisionist to the Office as reported by the Registrar General of this Court." Learned Amicus Curiae submits that the revisionist has filed transfer application before the Supreme Court, which has been dismissed on 27.1.2021. On 15.5.2023, this Court passed a detailed order and directed the revisionist to engage an Advocate of his choice to assist the Court on or before next date of listing otherwise the matter shall be heard by the assistance of Sri. Arvind Kumar Singh, learned Amicus Curiae and listed the matter on 12.7.2023. Office was directed to inform the revisionist immediately through jail authorities by FAX/e-mail about the order to engage an advocate of his choice till the next date of listing. Vide office report dated 11.7.2023, it is informed that the copy of the order dated 15.5.2023 was earlier sent to jail authorities concerned by e-mail and speed post for ensuring necessary compliance, however, no compliance report has been received as yet. On 12.7.2023, an office report has been given to the effect that a Letter bearing No.59801, dated 31.5.2023 of Superintendent of District Jail, Ghaziabad is kept on record. It appears that the revisionist was transferred from District Jail, Ghaziabad to District Jail Gautam Budh Nagar on 4.6.2023. Thus, from perusal of record of criminal revision, it appears that due to transfer of the applicant from one jail to another, the order of this Court dated 15.5.2023, in which revisionist was directed to engage an advocate of his choice to assist the Court, could not be communicated to him instead of issuance of letter and receiving the same by concerned jail superintendent. 12. Be that it may, this position is clear from record that the applicant could not appear in person before this Court while criminal revision was heard on merit. However, the Amicus Curiae Sri. 12. Be that it may, this position is clear from record that the applicant could not appear in person before this Court while criminal revision was heard on merit. However, the Amicus Curiae Sri. Arvind Kumar Singh appointed by this Court on behalf of the applicant to argue his case, was duly heard and the stand of the applicant has been discussed as per the submissions of learned Amicus Curiae in detail as well as on the basis of record from paragraph Nos.8 to 11 of the impugned judgement and order passed in said criminal revision. The impugned judgement and order has not been on default but has been passed after hearing submissions of learned Amicus Curiae appearing on behalf of the applicant as well as learned counsels appearing for the respondents. The main grievance of the applicant is with regard to upholding his conviction under Section 498-A, 323 IPC in revisional order. The applicant is at liberty to seek appropriate remedy before superior court, if he is aggrieved by any part of the impugned judgement and order dated 06.12.2023. So far as the prayer for recalling the bail cancellation order dated 19.11.2022 is concerned, the same has become now infructuous as the revision has now been finally decided and the revisionist has been released from jail custody after undergoing the modified sentence as awarded in said criminal revision. 13. Section 362 Cr.P.C. expressly prohibits a criminal court from altering or revising any judgement or final order disposing of a case after it has been signed except for the purpose of correction of clerical or arithmetical error. Any alteration, therefore, of a judgement or final order disposing of a case not sanctioned by this Section is a nullity as soon as the judgement or final order disposing of a case is signed, it becomes final and the Court is functus officio. 14. In Harjeet Singh v. State of West Bengal, 2005 Cr.L.J. 3286, full Bench of Calcutta High Court held that the Court has no jurisdiction to set aside or review its own judgement or final order, which has already been signed, even if it is found subsequently that it offends the principles of natural justice. 15. The code of criminal procedure does not authorize the High Court to review its judgement or order passed either in exercise of its appellate, revisional or original jurisdiction. 15. The code of criminal procedure does not authorize the High Court to review its judgement or order passed either in exercise of its appellate, revisional or original jurisdiction. The prohibition under Section 362 Cr.P.C. is complete and no criminal court can review its judgement and order after it is signed. A very limited scope of review has been recognized by judicial precedents that the court can review its judgement only if it is shown from the bare perusal of record that any error of fact or law has been committed by the Court and for that purpose, no fishing enquiry is desirable. The embargo under Section 362 Cr.P.C., does not operate against the interlocutory orders, which can be altered or modified at later stage. The prayer in present application under Section 482 Cr.P.C. is in essence a prayer for review of a judgement passed on merit, which is neither desirable nor permissible. 16. As per mandate of Section 317 Cr.P.C., an inquiry or criminal trial can proceed in absence of the accused by the trial Court if the accused is represented by a pleader and dispensed with his attendance. 17. Section 385 Cr.P.C. reads as under:- 385. Procedure for hearing appeals not dismissed summarily.- (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given- (i) to the appellant or his pleader; (ii) to such officer as the State Govern may appoint in this behalf; (iii) if the appeal is from a judgement of conviction in a case instituted upon complaint, to the complainant; (iv) if the appeal is under Section 377 or Section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal. (2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties: Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record. (3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground. 18. (3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground. 18. In the present case, the grievance of the applicant is that the criminal revision filed by him against concurrent judgement of courts below, by which he was convicted and sentenced under Section 323, 498-A and 377 IPC, was decided without summoning him from jail and hearing his submissions in person. This is apparent from record the Amicus Curiae appointed on behalf of the revisionist was heard at the time of final hearing of the revision and stand of the revisionist/applicant has elaborately been discussed in impugned revisional judgement. The revisionist was sent to jail custody by a Co-ordinate Bench of this Court due to his own obstinate and uncooperative attitude before this Court. Therefore, I do not find any substance in his submission on facts of the case. 19. Present application under Section 482 Cr.P.C. filed by him for recalling the impugned judgement and order passed in said criminal revision and restoration of revision to its original number is not based on sound legal grounds and the prayer deserves to be refused. 20. Accordingly, the restoration/recall application filed by the applicant under Section 482 Cr.P.C. is hereby, dismissed, with above observations.