Karnataka High Court
P Jagadeesha S/O Late H Puttaswamy vs State Of Karnataka on 6 August, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.448 OF 2011
BETWEEN:
P.Jagadeesha,
s/o late H.Puttaswamy,
Aged about 57 years,
r/a No.154, 34th Cross,
1st floor, Hanumanthanagar,
Near Corporation Ward Office,
Bangalore 560 019.
Presently r/a No.19,
"Devikrupa", 1st 'A' Cross,
II Block, Vishwapriyanagar,
Begur Road,
Bangalore 560 068. ... Petitioner
(by Sri.H.M.Venkatesh, Advocate)
AND:
State of Karnataka,
By PSI Ijoor P.S.,
Ramanagaram. ... Respondent
(by Sri.Vinayaka V.S, HCGP)
Crl.R.P.No.448/2011
2
This Criminal Revision Petition is filed under Section
397 Cr.PC praying to set aside the order dated 5.3.2011
passed by the District and Sessions Judge, Ramanagara in
Crl.A.No.2/2007 and order dated 5.5.2006 passed by the
Civil Judge (Jr.Dn), and Additional JMFC, Ramanagara, in
CC.No.428/1998.
This Criminal Revision Petition coming on for Final
Hearing through Video Conference/ Physical Hearing this day,
the Court made the following:
ORDER
The petitioner herein was the accused in the Court of the Civil Judge (Jr.Dn) & Additional JMFC at Ramanagaram (hereinafter for brevity referred to as 'trial Court'), who was convicted for the offence punishable under Section 409 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC'). He preferred an appeal in the Court of learned District and Sessions Judge, Ramanagara (hereinafter for brevity referred to as 'Court of Appeal') in Criminal Appeal No.2/2007, which by its impugned judgment dated 5.3.2011 initially pronounced an order of partly allowing Crl.R.P.No.448/2011 3 the appeal, however, by a correction of the operative portion of the judgment vide its correction order dated 18.4.2011 made the appeal as dismissed. It is against the said judgment of confirmation of conviction and order on sentence, the accused has preferred this revision petition.
2. The summary of the charge leveled against the accused was that, being the Head Cashier in the State Bank of Mysore, Ramanagara Branch, the accused was entrusted with cash of Rs.37,72,500/- on 1.2.1997. On the same day, at about 1.10 pm., during the business hours, the accused without informing his superior officers, had left the bank unauthorizedly taking a cash of Rs.2,94,940/- with him out of the said entrusted amount, for his own use and has misappropriated the said sum and thereby has Crl.R.P.No.448/2011 4 committed the offence punishable under Section 409 of IPC.
3. The accused pleaded not guilty. As such, the trial was conducted, wherein the prosecution in order to prove the alleged guilt against the accused examined 9 witnesses from PWs.1 to 9, got marked documents from Exs.P1 to P4(a) and Material Objects from MOs.1 to MO.8. From the accused side, neither any witnesses were examined nor any documents were marked as exhibits. After hearing both side, the trial Court by its impugned judgment of conviction and order on sentence dated 5.5.2006 convicted the accused for the offence punishable under Section 409 of IPC and sentenced him accordingly. His appeal before the Court of Appeal also came to be dismissed as observed above.
4. The respondent is being represented by the learned High Court Government Pleader. Crl.R.P.No.448/2011 5
The lower court records were called for and the same are placed before the Court. Heard the argument from both side.
5. The learned counsel for the appellant submitted a single point argument by drawing attention of this Court to the certified copy of the impugned judgment passed by the Court of Appeal and submitted that the Court of Appeal had committed a grave mistake that though it had answered point Nos.1 and 2 framed by it for its consideration in affirmative, and had initially allowed the appeal, but subsequently without any notice to the accused/appellant before it has unilaterally changed its finding and dismissed the appeal which was earlier allowed by the same Court. The said act of the Court of Appeal of changing the judgment without causing notice to the appellant before it and hearing him, is nothing but non application of mind by the Court Crl.R.P.No.448/2011 6 of Appeal as well as caused great prejudice to the appellant with respect to his personal liberty and right to life, as such the appeal deserves to be allowed.
He further submitted that even under Section 362 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'CrPC') once the judgment is pronounced by the Court, it cannot be unilaterally altered or changed by a Court. In his support, he relied upon a judgment of the Hon'ble Apex Court in Surendra Singh and Others -vs- State of Uttar Pradesh, reported in AIR 1954 SC 194.
6. Learned HCGP in his argument submitted that a reading of the impugned judgment of the Court of Appeal clearly shows that the said Court has given a detailed reasoning repeatedly mentioning at several places that the appeal before it was bereft of any merit and deserves to be dismissed. That being the case, Crl.R.P.No.448/2011 7 while concluding the judgment, it has answered the points framed by it instead of "in the negative" as 'partly affirmative', consequently, in the operative portion also instead of showing it as appeal was "dismissed", it has shown the appeal as 'allowed in part'. Thus, the same being purely a typographical error, the Court has ample power under Section 362 of CrPC to correct its judgment.
Learned HCGP further submitted that even under revisional jurisdiction under Section 397 of CrPC also this Court has got power to suo moto call for the records and to examine the record for satisfying itself as to the correctness, legality or propriety of any finding. That being the case, said typographical error can also be rectified by this revisional Court since the same has not caused any prejudice to the interest of the accused. Crl.R.P.No.448/2011 8
7. The Court of Appeal had framed the following two points for its consideration:
1. Whether the trial court has committed serious illegality and perversity in convicting the accused appellant for the offences punishable under sec.409 of IPC?
2. Whether the judgment of conviction and sentence passed by the trial court is manifestly illegal and perverse which warrants the interference of this Court?
Paragraph No.18 of the impugned judgment is summary of its finding which read as below prior to its correction dated 18.4.2011 where in the finding given was 'as partly affirmative'.
" 18. On over all appreciation of the evidence available on record, I am of the considered view that the prosecution has proved its case beyond any shadow of doubt. The learned Magistrate was right in convicting the accused appellant on the basis of the evidence let in by the prosecution. On re-Crl.R.P.No.448/2011 9
appreciation of entire evidence, I do not find any illegality or perversity in the judgment of the trial court. Judgment of the conviction and sentence of the trial court appears to be sound and proper and it does not warrant interference at the hands of the court. The appeal filed by the appellant is bereft of merits and it deserves to be dismissed. Accordingly, I have answered the points-1 and 2 as partly affirmative.
19. Point No.3: In the result and for the reasons stated above, I proceed to pass the following order:"
The same was followed with the following conclusion as the operative portion:
"ORDER The appeal filed by the appellant under sec. 374 of Cr.P.C. is hereby allowed in part."
However, at the application of the Public Prosecutor filed under Section 362 of CrPC, the Court of Crl.R.P.No.448/2011 10 Appeal on 18.4.2011 proceeded to alter the judgment, thereby substituted the words in the last line of paragraph No.18 which read as 'as partly affirmative' with the words "in the negative". Similarly, in the operative portion, the words 'allowed in part' were substituted with the word "dismissed".
8. Section 362 of CrPC 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."
A reading of the said Section goes to show that the power to alter the judgment which has already been signed, is confined only for correction of clerical or arithmetical error. The reason given by the learned Crl.R.P.No.448/2011 11 judge of the Court of Appeal in its order of alteration dated 18.4.2011 was that it was a typographical error.
9. The learned counsel for the revision petitioner in his argument vehemently submitted that when the learned judge of the Court of Appeal has signed the judgment stating that the judgment was dictated to the Judgment Writer, transcribed by him and transcript was revised and then pronounced by him in the open Court, the same cannot be called as a typographical error. He also submitted that there is no material on record to show that the altered words were in fact the original dictation that was given by the learned judge of the Court of Appeal. Had he given the dictation to the Judgment Writer with the same words 'as partly affirmative' and with the words 'allowed in part', the Judgment Writer has transcribed the same correctly as given in dictation to him and the learned judge has after Crl.R.P.No.448/2011 12 thorough scrutiny pronounced the said order. As such, the same cannot be called either a typographical error or a clerical or arithmetical error. He submits that rather it is a clear instance of non application of mind by the judicial officer. He further contends that even before entertaining an application filed by the Prosecutor under Section 362 of CrPC, the Court of Appeal did not cause any notice upon the appellant before it. As such, the order for alteration was also a unilateral order passed by the Court of Appeal without hearing the appellant before it, who is the aggrieved party.
10. I find more force in the said argument of the learned counsel for the appellant. Had it really been a typographical error, the learned judge should have recorded a finding as to how he considered the same as typographical error though he has given the dictation of the judgment to his Judgment Writer and had certified Crl.R.P.No.448/2011 13 that he has revised the transcription and only thereafter has pronounced the same in the Court. That apart, assuming for a moment that the said error can be considered as a clerical error or arithmetical error, still the learned judge of the Court of Appeal ought to have caused notice upon the appellant before it who by then already had in his possession a certified copy of the judgment of his acquittal. As such, it was only after hearing him the Court of Appeal should have proceeded further in deciding the application before it. The order sheet of the Court of Appeal which is part of the trial court record nowhere mentions that the appellant was notified about the said application or the appellant was heard before passing the order dated 18.4.2011.
11. The Hon'ble Apex Court in Surendra Singh's case (supra) in paragraph No.15 of its judgment has observed as below:
Crl.R.P.No.448/201114
"15. After the judgment has been delivered provision is made for review. One provision is that it can be freely altered or amended or even changed completely without further formality, except notice to the parties and a rehearing on the point of change should that be necessary, provided it has not been signed. Another is that after signature a review properly so-called would lie in civil cases but none in criminal; but the review, when it lies, is only permitted on very narrow grounds. But in this case the mere fact that a Judge is dead and so cannot review his judgment does not affect the validity of the judgment which has already been delivered and has become effective. For this reason there is a distinction between judgments which have not been delivered and so have not become operative and those which have. In the former case, the alteration is out of court. It is not a judicial act. It is only part of a process of reaching a final conclusion; also there is no formal public declaration of the Judges' mind in open court and consequently there is no "judgment' which can be acted upon. But after delivery the alteration cannot Crl.R.P.No.448/2011 15 be made without notice to the parties and the proceeding must take place in open court, and if there is no alteration there is something which is final and conclusive and which can at once be acted upon. The difference is this. In the one case, one cannot know, and it would be against public policy to enquire, whether the draft of a judgment is the final conclusion of the Judge or is only a tentative opinion subject to alteration and change. In the second case, the Judge has publicly declared his mind and cannot therefore change it without notice to the parties and without hearing them afresh when that is necessary; and if there is no change the judgment continues in force. By change we mean an alteration of the decision and not merely the addition or subtraction of part of the reasoning."
The above observation of their Lordships would clearly go to show that once the judgment is signed and delivered by the Court, it cannot alter the said judgment and its finding, that too, in the case like the one on hand Crl.R.P.No.448/2011 16 where the Court is substituting with a diagonally opposite finding i.e., dismissing the appeal from the pronounced order of allowing it earlier. The Court of Appeal should have necessarily heard the appellant before it. In such a situation, though this Court has got a revisional power under Section 397 of CrPC, but the scope of revisional jurisdiction is limited. Court cannot enter into detailed discussion of the merits or demerits of the case. As such, it is the Court of Appeal only which has to re-appreciate the entire evidence before it and exercising its power as a Court of Appeal should pass appropriate judgment in the appeal on its merits.
12. In addition to the above, a reading of the impugned judgment would go to show that the learned judge of the Court of Appeal though in his reason has shown that the appeal was devoid of merits, however, by answering the points framed by him as partly Crl.R.P.No.448/2011 17 affirmative and more importantly initially pronouncing an order of allowing the appeal in part has subsequently passed a diametrically opposite order by dismissing the appeal, has thus demonstrated that he has not applied his judicious mind properly in the matter before him. As such, in the best interest of justice and to ensure that the accused gets a due hearing of his matter before the appropriate Court of Appeal, I am of the view that the impugned judgment of the Court of Appeal deserves to be set aside and the matter deserves to be remanded to the appellate Court for hearing the final arguments of both side afresh and to dispose off the matter in accordance with law.
Accordingly, I proceed to pass the following:
ORDER
i) The Revision Petition is allowed in part.Crl.R.P.No.448/2011 18
ii) The judgment dated 5.3.2011 subsequently altered on 18.4.2011 in Criminal Appeal No.2/2007 by the learned District and Sessions Judge, Ramanagara confirming the conviction of the appellant for the offence punishable under Section 409 of IPC is set aside.
iii) The matter is remanded to the Court of Appeal with a direction to permit both side to address their final argument on the merits of the case and to dispose off the matter at the earliest.
iv) Both parties are directed to appear before the Court of Appeal i.e., District and Sessions Court, Ramanagara, on 21.9.2020 at 11.00 a.m without insisting upon any fresh notice from it and to address their argument in the Crl.R.P.No.448/2011 19 matter to enable the Court of Appeal to dispose off the matter at the earliest.
Registry to transmit the trial court records alongwith copy of this judgment to the Court of Appeal immediately.
Sd/-
JUDGE nd