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Madhya Pradesh High Court

Bagh Singh vs The State Of Madhya Pradesh on 30 April, 2019

                                  1                      M.Cr.C.11754/2019




               THE HIGH COURT OF MADHYA PRADESH
                        M.Cr.C.No. 11754 / 2019

(Bagh Singh vs. The State of Madhya Pradesh & Anr.) Jabalpur, Dated:30-04-2019.

Shri Kabeer Paul, Advocate for the applicant. Shri Dilip Parihar, Public Prosecutor for the State. Heard finally.

This petition under Section 482 of the Cr.P.C. has been filed by the applicant for recalling of the order of this court dated 15.2.2019 passed in Criminal Revision No.6304/2018 whereby the criminal revision pre- ferred against the judgment dated 28.12.2018 passed by 1 st Additional Session Judge, Khandwa in criminal appeal no.153/17 confirming the judgment dated 23.8.2017 passed by the Judicial Magistrate First Class, Punasa, District Khandwa in Criminal case no. 680/16, whereby the ap- plicant has been convicted under sections 451, 354 and 354A of the IPC and sentenced to RI for 1 year, RI for 1 year and RI for 1 year with fine amount of Rs.200/- on each count, respectively, with stipulation clause, has been rejected confirming the conviction and sentence as minimum sentence is prescribed for the offence under Section 354 of the IPC.

The present petition has been filed on the ground that after pass- ing of the order dated 15.2.2019, the prosecutrix has executed an af- davit and expressed her willingness to forgive the applicant / accused and also expressed her desire to compound the offence and in this re- gard compromise petition has also been filed and on the ground of compromise, prayer is made to recall the order passed by this court and the applicant be acquitted.

Having heard the contentions of learned counsel for the appli- cant, in view of this court, after passing of the judgment or order in the revision on merits, this court has no jurisdiction to review or modify its own judgment or order in view of the provisions of Section 362 of Cr.P.C. Hon'ble the Apex court in the case of Tanveer Aquil v. State of 2 M.Cr.C.11754/2019 M.P., 1990 Supp. SCC 63 has held that "once judgment pronounced, High court has no jurisdiction to entertain application for grant of per- mission to compound the offence." Whereas in the present case, the offences are also not compoundable. A Three Judge Bench of the Apex Court in the case of Hari Singh Mann v. Harbhajan Singh Bajwa (2001) 1 SCC 169, has held that "the Code of Criminal Procedure does not autho- rize the High Court to review its judgment or order passed either in ex- ercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the court after it has signed its judgment or final or- der disposing of a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed."

Learned counsel appearing on behalf of the applicant has placed reliance on a judgment of this court passed in the case of Hazi Abdul Rehman and another v. Ashok Kumar, 1991 MPLJ 747, in which it has been held in paragraphs no. 14 and 15; which are reproduced herein be- low :-

14. "In the present case, both the accused were ac-

quitted by the trial Court. The appeal filed by the com- plainant was allowed. Both the accused were con- victed Under Section 407 Indian Penal Code and were sentenced to imprisonment and fine both, without giv- ing any opportunity of hearing on the nature and quantum of sentence in violation of Section 248(2) of the Code. Therefore, the sentences passed on them are vitiated. The error which crept in my judgment through inadvertence, I must correct the same. Ac- cordingly I set aside the sentences awarded to both the applicants.

15. The counsel for applicants as also the com- plainant and the State were heard on question of sen- tence. The applicants brought to my notice that appli- cant No. 1, the father of the applicant No. 2, is aged 72 years. Both parties have compromised their dispute as per deed Annexure 'A'. In consideration of payment of Rs. 1,50,000/- by the applicants, the society withdrew the civil suit also filed by it against the applicants. A copy of resolution of the society authorizing non-appli- cant Ashok Kumar to compromise is on record. Even though the offence for which the applicants have been convicted is non-compoundable yet the fact of com- promise can be taken into account in determining the quantum of sentence. See Ram Pujan and Ors. v. State of Uttar Pradesh, AIR 1973 SC 2418. Both the accused are first offenders. Seven years' period has elapsed since the date of offence. There is no allegation of simi- lar incidents, against the applicant subsequent to the date of incident. Considering the fact of compromise circumstances in which the offence was committed and the age, character and the antecedents of the ap- plicant, -no needful purpose would now be served by sending them to jail. I therefore direct that both the applicants be released on probation of good conduct for a period of 3 years on their entering into bonds on a sum of Rs. 5,000/-, each with one surety each in the like amount, to appear and receive sentence when called upon during the said period of 3 years and in the meantime the applicants are directed to keep peace and be of good behaviour."

In the aforesaid case, without giving opportunity of hearing on the quantum of sentence, the sentence was passed and opportunity of hearing on the point of sentence was given by passing afresh order in which the fact of the compromise between the parties was also consid- ered to determine the quantum of sentence and the accused was re- leased on probation.

So far as the facts of the present case are concerned, they are to- tally different and on the strength of aforesaid judgment cited by learned counsel for the applicant and also in view of the law laid down by the Apex Court in the case of Tanveer Aquil (supra) and Hari Singh Mann (supra) no relief as sought by learned counsel for the applicant can be granted. Hence, this petition being devoid of merit is dismissed.

(J.P.GUPTA) JUDGE JP/-