Karnataka High Court
Hanmanth vs The State Of Karnataka on 14 July, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
R
DATED THIS THE 14TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
I.A.Nos.1/2017, 2/2017 & 3/2017
IN
CRIMINAL APPEAL No.1320/2011
Between:
1. Hanamanth S/o Sangappa
Aged about 77 Years
Occ: Agriculture
2. Suryakanth S/o Hanmanthrao
Aged about 51 Years
Occ: Agriculture
3. Pappu @ Premsagar S/o Nagendra
Aged about 40 Years
Occ: Agriculture
4. Baswaraj S/o Suryakanth
Aged about 22 Years
Occ: Agriculture
5. Bhagamma W/o Hanmanthrao
Aged about 70 Years
Occ: Agriculture
6. Neelavati W/o Nagender
Aged about 50 Years
Occ: Agriculture
All R/o Madnoor village
Tq. Aurad, Dist. Bidar ... Applicants
Common in all
the applications
(By Sri Baburao Mangane, Advocate)
2
And:
1. The State of Karnataka
Through The Police
Kamalanagar Police Station
Represented by the
Public Prosecution, Bidar
... Respondent No.1
Common in all the applications
2. Shakuntala W/o Sidram Biradar Age: 65 years, Occ: Household R/o Madnoor village Tq. Aurad, Dist. Bidar
3. Sidram S/o Bandeppa Biradar Age: 74 years, Occ: Agriculture R/o Madnoor village Tq. Aurad, Dist. Bidar
4. Sangamma W/o Sidram Biradar Age: 69 years, Occ: Household R/o Madnoor Village Tq. Aurad, Dist. Bidar ... Respondent Nos.2 to 4 Common in I.A.Nos.2/2017 & 3/2017 (By Sri P.S.Patil, HCGP) I.A.No.1/2017 is filed under Section 482 of Cr.P.C., praying to rehear the matter for compounding the case in view of settlement/compromise arrived between the appellants and complainant/victim.
I.A.No.2/2017 is filed under Sections 320(1)(2)(3) and (5) r/w Section 482 of Cr.P.C., seeking permission to compound the offences.
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I.A.No.3/2017 is filed under Section 320(8) r/w Section 482 of Cr.P.C., praying to compound the offences in view of the settlement/compromise arrived between the appellants and respondent Nos.2 to 4.
These applications coming on for Orders this day, the Court made the following:-
ORDER ON I.A.Nos.1/2017, 2/2017 & 3/2017 Heard the learned counsel appearing for the appellants and the learned High Court Government Pleader on I.A Nos.1/2017, 2/2017 and 3/2017.
2. I.A.No.1/2017 has been filed under Section 482 of Cr.P.C., praying to rehear the matter, which has been disposed of by this Court on 28.06.2017.
I.A.No.2/2017 has been filed under Section 320(1), (2), (3) & (5) r/w Section 482 of Cr.P.C., seeking permission to compound the offences and I.A.No.3/2017 has been filed under Section 320(8) r/w Section 482 of Cr.P.C., for compounding the offences.
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3. Facts leading to the case are that:
Appellants/accused were convicted by the learned Sessions Judge in S.C.No.50/2009 vide judgment and order dated 21.12.2011 for the offences under Sections 307, 323 and 324 r/w Section 34 of IPC. By assailing the Judgment of conviction, the present appeal was filed. After hearing both the parties, appeal was partly allowed, conviction and sentence under Section 307 of IPC has been modified and accused were convicted for the offences punishable under Sections 324, 323 r/w Section 34 of IPC by order dated 28.06.2017 and the matter came to be disposed of. Thereafter present applications came to be filed.
4. Learned counsel appearing for the appellants/applicants submits that though this Court has passed the order on 28.06.2017 by partly allowing the appeal and modifying the order, convicted the accused under Section 324 of IPC, this Court by exercising the power under Section 482 and 320 of 5 Cr.P.C., could compound the offence and accept the compromise. He further contends that, even though there is a bar under Section 362 of Cr.P.C., this Court while exercising its power and jurisdiction under Section 482 of Cr.P.C., could compound the offences. He further contended that, the appellants/accused have compounded the offences and even after the disposal of the case, the Court by exercising its power under Section 482 of Cr.P.C., can compound the offences. In order to substantiate the said contention, he relied upon a decision of Kerala High Court in the case of Sabu George S/o George vs. The Home Secretary and P.K.Ravi in W.P.(C) No.34540/2006 and another decision of this Court in Criminal Appeal No.1928/2007 in the case of Alisab S/o Maliksab Kadaki vs. State of Karnataka and contend that, in order to meet the ends of justice, this Court can exercise power under Section 482 of Cr.P.C., and compound the offences by 6 accepting the compromise. On these grounds, he prays for allowing the said applications.
5. Per contra, the learned High Court Government Pleader appearing for the respondent-State has vehemently contended that, as per Section 362 of Cr.P.C., when once the Court passes an order, the said Court becomes functus officio and it cannot alter or review or recall the order vis-à-vis it cannot compound the offences by exercising power even under Section 482 of Cr.P.C. He would further contend that, the offences for which the accused persons have been charge sheeted are not compoundable offences even under Section 320 (2), (4) and (5) of Cr.P.C. He would contend that, the accused persons were given full opportunity and after hearing, this Court has passed a detailed judgment on merits on 28.06.2017 and at this juncture, this Court cannot exercise power under Section 482 of Cr.P.C., and allow the applications filed by the 7 appellants/accused. On these grounds, he prays for dismissal of the applications.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the appellants/applicants and the learned High Court Government Pleader.
7. It is not in dispute that, this Court after hearing the learned counsel appearing on behalf of the appellants and the learned High Court Government Pleader has passed the judgment dated 28.06.2017. However, previously the accused persons were convicted for the offence under Section 307 of IPC by the trial Court. On analyzing the evidence and material on record, this Court has come to the conclusion that, the act of the appellants/accused may amount to offence under Section 324 of IPC and not under Section 307 of IPC. By modifying the sentence, this Court has affirmed the judgment and order of the Trial Court. Now the 8 present applications have been filed. The only question which remains for consideration of this Court is, whether after disposal of the case on merits, can the said applications be entertained and an opportunity for re-hearing and subsequently, for compounding of offences be permitted?
8. For the purpose of brevity, I quote Section 362 of Cr.P.C., which reads 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."
9. On close reading of the said Section, it clearly indicates that, once the judgment has been signed by the Court, the said judgment will become final order thereby disposing off the case. Thereafter, this 9 Court cannot alter or review the same except to correct any clerical or arithmetical error. The word used in Section 362 of Cr.P.C., is 'shall'. The word 'shall', itself indicates that immediately after signing the judgment, the said Court becomes functus officio and in any event, except for the reasons stated therein, it cannot alter or review the said judgment and order.
10. It is well-established principle of law that, before signing the Judgment or order, recalling of Judgment is permissible. But when once the Judgment is signed, in view of Section 362 of Cr.P.C., the Court cannot recall the Judgment. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Kushalbhai Ratanbhai Rohit and others vs. State of Gujarat reported in (2014) 9 SCC 124, wherein at paragraphs-7 and 12 to 14 it has been observed as under:
"7. We do not find any forcible submission advanced on behalf of the 10 petitioners that once the order had been dictated in open Court, the order to review or recall is not permissible in view of the provisions of Section 362 Cr.P.C. for the simple reason that Section 362 Cr.P.C. puts an embargo to call, recall or review any Judgment or order passed in criminal case once it has been pronounced and signed. In the instant case, admittedly, the order was dictated in the Court, but had not been signed.
8 to 11. xxx
12. Thus, from the above, it is evident that a Judge's responsibility is very heavy, particularly, in a case where a man's life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture. Therefore on cannot assume, that the Judge would not have changed his mind before the judgment became final.
13. In Iqbal Ismail Sodawala V/s State of Maharastra, the judgment in Surendra Singh referred to hereinabove was considered 11 in this case. In that case, criminal appeal was heard by the Division Bench of the High Court, the judgment was signed by both of them but it was delivered in Court by one of them after the death of the other. It was held that there was no valid judgment and the same should be reheard. This Court took the view that the judgment is the final decision of the Court intimated to the parties and the world at large.
14. In view of the above, we are of the considered opinion that no exception can be taken to the procedure adopted by the High Court in the instant case."
11. The learned counsel contended that this Court by exercising its power under Section 482 of Cr.P.C., can review and recall the order, but if the letter and spirit of Section 362 of Cr.P.C., is taken, nowhere there is any ambiguity and no such discretion has been given to the Court. The prayer which has been made through I.A.Nos.1/2017 to 3/2017 is not with regard to 12 prayer for correcting some omission/typographical error in the Judgment, but correction of the Judgment itself, by which the very foundation and conviction order is going to be reversed, thereby, it loses the sanctity of the order of this Court.
12. The provision of Section 362 of Cr.P.C., clarify as to how and in what manner the said provisions have to be applied, has been elaborately discussed by the Hon'ble Apex Court in the case of Hari Singh Mann vs. Harbhajan Singh Bajwa and others reported in (2001) 1 SCC 169, wherein at paragraphs 9 and 10 it has been observed as under:
"9. There is no provision in the Code of Criminal Procedure authorizing the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. This Court in 13 State of Orissa v.Ram Chander Agarwala [AIR 1979 SC 87] held:
"20. Before concluding we will very briefly refer to cases of this Court cited by counsel on both sides, Talab Haji Hussain 1958 SCR 1226: (AIR 1958 SC 376) relates to the power of the High Court to cancel bail. The High Court took the view that under Section 561-A of the Code, it had inherent power to cancel the bail, and finding that on the material produced before the Court it would not be safe to permit the appellant to be at large cancelled the bail, distinguishing the decision in Lala Jairam Das v. King-Emperor (1944-45) 72 IA 120: (AIR 1945 PC 94) (supra) and stated that the Privy Council was not called upon to consider the question about the inherent power of the High Court to cancel bail under Section 561- A. In Sankatha Singh v.State of U.P. (1962) Supp (2) SCR 817: (AIR 1962 SC 1208) this Court held that Section 369 14 read with Section 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a court. The accused applied before a succeeding Sessions Judge for re-
hearing of an appeal. The learned Judge was of the view that the
appellate court had no power to review or restore an appeal which has been disposed of. The Supreme Court agreed with the view that the appellate court had no power to review or restore an appeal. This Court, expressing its opinion that the Sessions Court had no power to review or restore an appeal observed that a judgment, which does not comply with the requirements of Section 367 of the Code, may be liable to be set aside by a superior Court but will not give the appellate Court any power to set it aside itself and re-hear the appeal observing that 'Section 369 read with Section 424 of the Code makes it clear that the appellate court is not to alter or review the judgment once 15 signed, except for the purpose of correcting a clerical error'. Reliance was placed on a decision of this Court in Supdt. and Remembrancer of Legal Affairs W.B. v. Mohan Singh, AIR 1975 SC 1002 by Mr.Patel, learned counsel for the respondent wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision instead of supporting the respondent clearly lays down, following Chopra's case (AIR 1955 SC 633) (supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing 16 the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of Section 561-A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code."
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 17 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. The reliance of the respondent on Talab Haji Hussain's case (supra) is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561-A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7.1.1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the 18 judgment but also to the final orders other than the judgment."
13. In the aforesaid decision, the Hon'ble Apex Court has held that Section 362 of Cr.P.C., 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 clerical or an arithmetical error and 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 is disentitled to entertain a fresh prayer for the same relief or any other alternative relief unless, the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Hon'ble Apex Court has clarified that, the Court which has passed the order, after signing, it becomes functus officio and it should not entertain any fresh prayer and only alternative remedy left open to the parties is that, 19 they have to approach the appropriate competent Court of appeal or any such proceedings available in law.
14. Though the learned counsel for the applicants has relied upon a decision of Kerala High Court as quoted supra, in the said decision itself, the Hon'ble Apex Court has referred and thereafter, the Court made a distinction and thereafter, the Court has come to the conclusion that power under Section 482 of Cr.P.C., can be exercised by the Court. However, the citation produced by applicants is not helpful in anyway, as the order of another High Court is not binding on this Court. That apart, the Hon'ble Supreme Court has already laid down the law as quoted supra.
15. I want to rely upon yet another decision of the Hon'ble Apex Court in the case of Smt. Sooraj Devi vs. Pyare Lal and another reported in (1981) 1 SCC 500 = 736 wherein it has been observed as under: 20
"In the present case an application was filed under Section 482 asking the High Court for further adjudication in the matter covered by its earlier order. Such an application cannot be entertained in view of Section 362.
Para 5. The appellant points out that he invoked the inherent power of the High Court saved by s. 482 of the Code and that notwithstanding the prohibition imposed by s. 362 the High Court had power to grant relief. Now it is well settled that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. Sankatha Singh v. State of U.P. It is true that the prohibition in s. 362 against the Court altering or reviewing its judgment is subject to what is "otherwise provided by this Code or by any other law for the time being in force". Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in section 362 21 and, therefore, the attempt to invoke that power can be of no avail."
16. In the aforesaid decision the Hon'ble Apex Court has observed that inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. The provision of Section 362 of Cr.P.C., specifically prohibits the Court from altering or reviewing its judgment. Under the circumstances, power under Section 482 of Cr.P.C., cannot over-ride the provision of Section 362 of Cr.P.C. On close reading of both Sections, it is clear that, this Court has no power to recall or review its own order. This proposition of law has been laid down by the Hon'ble Apex Court in the case of R.Annapurna vs. Ramadugu Anantha Krishna Sastry and others reported in (2002) 10 SCC 401 at paragraph-5 which reads as under:
"5. When the appellant came to know of the said order, she moved the High Court with a prayer to recall the said order, but that was dismissed on the premise that the High Court has 22 no power to recall or review its own order. To that extent, the High Court was correct. Hence, the special leave filed by the appellant challenging the order passed on the recall petition [SLP (Crl.) No.976 of 1998] has been dismissed by us."
17. Under the said circumstances, this Court cannot exercise power under Section 482 of Cr.P.C., and cannot accept the applications filed in I.A.Nos.1/2017, 2/2017 and 3/2017.
18. Keeping in view the ratio laid down by the Hon'ble Apex Court and the proposition of law as aforementioned, I am of the opinion that this Court cannot go back and exercise power under Section 482 of Cr.P.C., to accept the compromise. Hence, the said applications are dismissed.
No order as to costs.
Sd/-
JUDGE MWS/NB*