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Jagat Bora, and Etc Etc. Vs. State of Assam - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantJagat Bora, and Etc Etc.
RespondentState of Assam
Excerpt:
.....revision petitions, the same would amount to alteration of the judgment in so far as the sentence is.........., it is not permissible to invoke the provisions of the act, as that would amount to alteration or review of the final order passed in the revision petitions. in ram chander (supra), it has been clearly held 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 code which would enable the high court to review the same or to exercise revisional jurisdiction. it was made clear that the bar created by section 369 of the old code (which was in pari materia to section 362 of the new code) is not restricted to the trial court alone. it was further laid down that the inherent powers could not also be invoked in this regard. it may be.....
Judgment:

B.L. Hansaria, J.

1. A common question of law has been raised in this batch of petitions. The point for consideration is whether this Court has jurisdiction in view of Section 362, Criminal P.C. 1973 to give benefit of the Probation of Offenders Act, 1958 (hereinafter the Act) to the petitioners after their revision applications against orders of convictions had been finally disposed of. In case this question is answered in the affirmative, the individual merits shall have to be gone into.

2. In all these cases after hearing the revision applications on merit, the same were disposed of by upholding the orders of convictions as well as the sentences with or without modification. Subsequently, these petitions were filed under Section 11 of the Act read with Section 482 of the Cr. P.C. As a common question of law cropped up, the same being the permissibility to entertain these applications, they were heard together and are being disposed of by a common order. There is no doubt that the Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. The object of the criminal law is being increasingly recognised as reformation of the individual rather than his punishment. Rattanlal v. State of Punjab : 1965CriLJ360 has, therefore, held that the provisions of the Act would even be attracted in a case where the Act was made applicable to an area even after the persons residing in that area had been convicted and sentenced by the trial court. This decision has further laid down that the benefit of the Act can be made available under Section 11 by revisional court even when the trial court could not have passed orders under the Act.

3. Strongly relying on this decision, it has been contended by the learned Counsel for the petitioners S/Shri Gayan and Das that it is open to this Court even now in these proceedings to exercise its powers under the Act. The broad proposition, as to the availability of powers is not disputed. The question is whether this can be invoked after final disposal of the revision applications as aforesaid. The learned Public Prosecutor, Assam, urges that in view of the decisions of the Supreme Court in State of Orissa v. Ram Chander : 1979CriLJ33 and Soorai Devi v. Pyare Lal : 1981CriLJ296 , it is not permissible to invoke the provisions of the Act, as that would amount to alteration or review of the final order passed in the revision petitions. In Ram Chander (supra), it has been clearly held 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 Code which would enable the High Court to review the same or to exercise revisional jurisdiction. It was made clear that the bar created by Section 369 of the old Code (which was in pari materia to Section 362 of the new Code) is not restricted to the trial Court alone. It was further laid down that the inherent powers could not also be invoked in this regard. It may be pointed out with profit that Ram Chander's was a case where after final order was passed in a revision petition sentencing the managers or the managing partners of the firm, to a substantive sentence of R. I. for six months, the same was altered to a fine of Rs. 3,900/- which was the sentence awarded on the firm. The State had appealed to the Supreme Court against this alteration order by the High Court. After referring to a number of decisions on the point, the contention of the State was upheld and it was held that the High Court had no power to revise its own order.

4. Sooraj Devi 1981 Cri LJ 296 (SC) (supra) followed the decision given in Ram Chander 1979 Cri LJ 33 (SC) and held that a final order of judgment passed by a court could only be altered or reviewed to correct a clerical or arithmetical error, which was elucidated to mean an error, occasioned by accidental slip or omission of the court and represented that which the Court never intended to say. The invocation of inherent powers in this regard was categorically ruled out. In Naresh v. State of U.P. : 1981CriLJ1044 , the subsequent alteration of conviction from Section 302 to Section 304, Part-I of the I.P.C. was viewed, with grave concern by the appeal Court who expressed its serious displeasure at the course of events in the High Court.

5. In view of these pronouncements of the highest court of the land, the view expressed in Rai Narain v. State AIR All 315 : 1959 Cri LJ 543 by a Full Bench and for that matter by a Division Bench in Lal Singh v. Stated AIR 1970 Punj & Har 32 : 1970 Cri LJ 267, holding that inherent powers can be invoked to revoke, review, recall or alter decision in a criminal revision has to be held to be no longer a good law. Shri Gayan is aware of his difficulty but in his attempt to persuade me that this Court is not still a functus officio and can entertain the petitions, brings to my notice a decision of this Court in Haji Sabajuddin v. Banmali 1982 (1) GLR 700. That was, however, a case where the point examined was whether a criminal revision dismissed for default could be restored to file. It has been held by Saikia, J. in that decision that the order of dismissal for default could not be regarded as 'final order', but is interlocutory, and as such the bar of Section 362 does not apply. Apparently, this decision cannot be called in aid by the petitioners. The learned Counsel also seeks to draw some sustenance from S.S. Kulkarni v. State of Maharashtra : (1982)2SCC174 . In that case, an appeal which was disposed of as having become infructuous was directed to be re-heard after reviewing the earlier order. That decision has not at all dealt with the point under consideration and, therefore, the same cannot be regarded as an authority for the proposition that this Court can review orders of the present nature.

6. Rattan Lal 1965 (1) Cri LJ 360) (SC) (supra) is pressed again by Shri Gayan to contend that this Court can still act under Section 11 of the Act. As already stated the question is not about the availability or otherwise of the power to grant probation benefit, but the difficulty is the threshold problem presented by the final disposal of the earlier revision applications. Rattan Lal has not gone into this aspect but has held that though the Act was extended to Palwal in Gurgaon District, whose resident the appellant was, after he had been convicted, the benefit of the same could nonetheless be made available. As such, on the ratio of Rattan Lal, the bar of Section 362 cannot be warded off especially in view of what has been categorically laid down in Ram Chander 1979 Cri LJ 33 (SC) and other decisions noted above.

7. It remains to be seen whether passing of any order under the Act would amount to alteration or review of the final order passed in the connected revision petitions. It seems no two answers are possible to this questioa inasmuch as alteration or modification of the sentence also amounts to review of judgment. It would be pertinent to point out that under the scheme of the Act benefit of release on probation can be given instead of sentencing the convict at once to any punishment, as stated in Section 4 of the Act. Section 360 of the Code is similarly worded. As such, if the petitioners are, now ordered to be released on probation of good conduct instead of undergoing the sentence awarded on them by the final orders passed in the connected revision petitions, the same would amount to alteration of the judgment in so far as the sentence is concerned. It may be remembered that Ram Chander's 1979 Cri LJ 33 (SC) was a case of substitution of a sentence of fine for the substantive sentence of imprisonment; and that was regarded as not permissible in view of Section 362 of the Code. In this connection, a reference may usefully be made to a Full Bench decision of the Punjab & Haryana High Court in Ajit Singh v. State of Punjab 1982 Cri LJ 1215 in which it was held that any alteration or modification of the sentence alone (without touching the merits or the section under which the conviction is recorded) amounts to a review of the judgment in the eye of law.

8. In view of the above, I am constrained to hold that the present applications under Section 11 of the Act and or Section 482 of the Code cannot be entertained in view of the bar cheated by Section 362 of the Code and are, therefore dismissed, as being non-maintainable. So merit of individual cases is not required to be gone into. The little delay in delivery of judgment ha3 happened because of my being away from the Principal seat for two weeks to hold court at Agartala after the hearing was over on 16-2-83.


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