Tripura High Court
Convict vs The State Of Tripura on 2 May, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
CRL PETN No.53 of 2016
Sri Jayanta Banik,
son of late Nihar Ranjan Banik,
resident of village: Central Road Extension,
P.O. Agartala, P.S. West Agartala,
District: West Tripura,
............ Convict-Petitioner
;;;;;...
- Vs -
1. The State of Tripura,
represented by the Secretary,
Home Department, Government of Tripura,
Civil Secretariat, P.S. N.C.C. Agartala,
District: West Tripura, PIN: 799 006
2. The Inspector General of Prison,
Government of Tripura,
Kendriya Sansodhanagar, Bishalgarh,
P.O. Bishalgarh, District: Sepahijala Tripura
3. Sri Biswanath Majumder,
son of Sri Amalendu Majumder,
resident of Ramnagar Road No.3,
P.O.Ramnagar, P.S. West Agartala,
District: West Tripura
[The complainant of Case No. N.I.67 of 2007]
4. Sri Amit Kumar Deb,
son of late Nepal Chandra Deb,
resident of Ramnagar Road No.3,
P.O. Ramnagar, P.S. West Agartala,
District: West Tripura
[The complainant of Case No. N.I.69 of 2007]
5. Sri Rajib Kumar Deb,
son of Matilal Deb,
resident of Ramnagar Road No.3,
P.O. Ramnagar, P.S. West Agartala,
District: West Tripura
[The complainant of Case No. N.I.70 of 2007]
6. Sri Rajib Kumar Deb,
son of Matilal Deb,
resident of Ramnagar Road No.3,
CRL PETN No.53 of 2016
Page 1 of 8
P.O. Ramnagar, P.S. West Agartala,
District: West Tripura
[The complainant of Case No. N.I.71 of 2007]
7. Sri Ritish Sarkar,
son of late Kshitish Chandra Sarkar,
resident of Ramnagar Road No.1,
P.O. Ramnagar, P.S. West Agartala,
District: West Tripura
[The complainant of Case No. N.I.79 of 2008]
............ Respondents
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the petitioner : Mr. D.C. Roy, Advocate Mr. A.K. Pal, Advocate For the respondents : Mr. S. Sarkar, P.P. Date of hearing and delivery of judgment and order : 02.05.2017 Whether fit for reporting : No Judgment and Order (Oral) Heard Mr. D.C. Roy and Mr. A.K. Pal, learned counsel appearing for the petitioner as well as Mr. S. Sarkar, learned P.P. appearing for the State.
02. By this petition, the petitioner has urged this court for invoking the inherent jurisdiction conferred by Section 482 of the Cr.P.C. to alter or modify the sentence as awarded delivered in (i) N.I. 67 of 2007, (ii) N.I. 69 of 2007, (iii) N.I. 70 of 2007, (iv) N.I.71 of 2007 and
(v) N.I. 79 of 2008 to make them run concurrently even though both the CRL PETN No.53 of 2016 Page 2 of 8 appellate court and the revisional court had affirmed those judgments and sentences while terminating the proceeding finally.
03. Mr. D.C. Roy, learned counsel appearing for the petitioner has submitted that in view of Section 427 of the Cr.P.C., the court can exercise the discretion to direct run concurrently those sentences. Section 427 of the Cr.P.C. provides that when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.
It has been provided further that where a person who has been sentenced to imprisonment by an order under section 122 of the Cr.P.C. in default of furnishing security, is whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.
04. It has been provided by Section 427 that when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.
05. Mr. D.C. Roy, learned counsel appearing for the petitioner has submitted that it is not a case of life sentence, therefore the sub-section CRL PETN No.53 of 2016 Page 3 of 8 2 of the Section 427 will not automatically operate in the field unless there is direction from the court that the sentences will run consecutively meaning one after another.
06. Mr. Roy, leanred counsel has referred a decision of the apex court in Shyam Pal vs. Dayawati Besoya and Another reported in (2016) 10 SCC 761, where the apex court has observed as under:
"(13) Though this provision has fallen for scrutiny of this Court umpteen times, we can profitably refer to one of the recent pronouncements in V.K. Bansal vs. State of Haryana (2013) 7 SCC 211 where it was held that though it is manifest from Section 427(1), that the Court has the power and discretion to issue a direction that a subsequent sentence shall run concurrently with the previous sentences, the very nature of the power so conferred, predicates that the discretion, would have to be exercised along judicial lines or not in a mechanical or pedantic manner. It was underlined that there is no cut and dried formula for the Court to follow, in the exercise of such power and that the justifiability or otherwise of the same, would depend on the nature of the offence or offences committed and the attendant facts and circumstances. It was however postulated, that the legal position favours the exercise of the discretion to the benefit of the prisoners in cases where the prosecution is based on a single transaction, no matter even if different complaints in relation thereto might have been filed. The caveat as well was that such a concession cannot be extended to transactions which are distinctly different, separate and independent of each other and amongst others where the parties are not the same."
[Emphasis added]
07. It is therefore clear that whether the court by exercise of discretion under Section 427(1) of the Cr.P.C. can direct that the sentences shall run concurrently would amount to reopening of the hearing of the sentence because variant aspects as laid down including in Shyam Pal (supra) are essentially to be considered by the court ordinarily, whether the sentence vis-a-vis the other sentence shall run concurrently or not, is to be decided by a court while passing the order of CRL PETN No.53 of 2016 Page 4 of 8 sentence. However, on challenge both the appellate and the revisional court can exercise that power available under Section 427(1) of Cr.P.C. in appropriate cases. But in this case this court is confronted with a jurisprudential question whether this court have any jurisdiction to entertain this application at all.
08. It is an admitted position that the High Court as the Revisional court had passed the final orders on diverse dates viz. 22.02.2016 delivered in Crl. Rev. P. 56 of 2015 [Sri Jayanta Banik vs. Sri Biswanath Majumder and Another], the judgment and order dated 22.02.2016 delivered in Crl. Rev. P. 57 of 2015 [Sri Jayanta Banik vs. Sri Rajib Kr. Deb and Another], the judgment and order dated 22.02.2016 delivered in Crl. Rev. P. 58 of 2015 [Sri Jayanta Banik vs. Sri Amit Kr. Deb and Another], the judgment and order dated 22.02.2016 delivered in Crl. Rev. P. 59 of 2015 [Sri Jayanta Banik vs. Sri Rajib Kr. Deb and Another] and the judgment and order dated 14.12.2015 delivered in Crl. Rev. P. No.95 of 2013 [Shri Jayanta Banik vs. Shri Ritish Sarkar and Another].
09. It appears from reading of those judgments judgment of the trial court, the appellate court and the revisional court that the petitioner did never advance this plea in those cases. When the High Court as the revisional court passed the final order in all the cases, the petitioner by filing this petition under 482 of the Cr.P.C. has urged this court to pass the order under Section 427(1) of the Cr.P.C. directing the sentence to run concurrent in view of the previous sentence that has been passed by the trial court. The relevant point therefore is that in view of Section 362 CRL PETN No.53 of 2016 Page 5 of 8 of the Cr.P.C whether this court can reopen its judgment and order in exercise of its power under Section 482 of the Cr.P.C.
10. Though Mr. D.C. Roy, learned counsel appearing for the petitioner has strenuously argued that the inherent power of the court can always invoked to do the substantive justice and to prevent the miscarriage of justice. If such discretion is not exercised the petitioner will suffer serious prejudice and it would lead to the miscarriage of, or denial to justice. Mr. Roy, learned counsel has placed reliance on Shyam Pal (supra) and Benson vs. State of Kerala reported in (2016) 10 SCC 307 for grant of such relief.
11. This court does not have any difficulty to hold that the competent court has power for directing the sentences vis-a-vis the previous sentence to run concurrently. But the issue that has emerged here is that in view of restriction as imposed, whether this court would take up this application for consideration on merit or not.
12. Mr. S. Sarkar, learned P.P. while strongly resisting the prayer has submitted that the court has become functus officio in view of Section 362 of the Cr.P.C. and as such this court may not exercise its jurisdiction under Section 482 of the Cr.P.C. inasmuch as when by express provision the court has been prevented from exercising any jurisdiction, exercise of power under Section 482 of the Cr.P.C., the action contrary thereto would render the said provision [Section 362 of the Cr.P.C.]. In support of his contention, Mr. Sarkar, learned P.P. has referred a decision of the apex court in State of Punjab vs. Davinder Pal Singh Bhullar & Ors. reported in 2012 AIR SCW 207, where the CRL PETN No.53 of 2016 Page 6 of 8 apex court has laid down the law quite distinction repelling any sort of ambiguity:
"26. There is no power of review with the Criminal Court after judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362, Cr.P.C. 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 is disentitled to entertain a fresh prayer for any 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 order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa & Ors., AIR 2001 SC 43; and Chhanni v. State of U.P., AIR 2006 SC 3051).
Moreover, the prohibition contained in Section 362 Cr.P.C. is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482, Cr.P.C. has no authority or jurisdiction to alter/review the same. (See: Moti Lal v. State of M.P., AIR 1994 SC 1544; Hari Singh Mann (supra); and State of Kerala v. M.M. Manikantan Nair, AIR 2001 SC 2145)."
The apex Court has also culled out the exceptions where the Section 362 of the Cr.P.C. would not operate. The apex court has observed as under in State of Punjab vs. Davinder Pal Singh Bhullar (supra):
"27. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362, Cr.P.C. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide:Chitawan & Ors. v.CRL PETN No.53 of 2016 Page 7 of 8
Mahboob Ilahi, 1970 Crl.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra & Anr., 1985 Crl.L.J.23; Habu v. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); Swarth Mahto & Anr. v.
Dharmdeo Narain Singh, AIR 1972 SC
1300;Makkapati Nagaswara Sastri v. S.S.
Satyanarayan, AIR 1981 SC 1156; Asit Kumar Kar v. State of West Bengal & Ors., (2009) 2 SCC 703; and Vishnu Agarwal v. State of U.P. & Anr., AIR 2011 SC 1232)."
13. Having regard to the position of law and the exception that has been curved out in Davinder Pal Singh Bhullar (supra) this court is of the view that the petitioner may seek the remedy in the appropriate court not before this court which has become functus officio by announcing the final decision. This court cannot exercise its power under Section 482 of the Cr.P.C. in the circumstances and accordingly this petition stands dismissed.
JUDGE Moumita CRL PETN No.53 of 2016 Page 8 of 8