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Bhanja Naik Vs. Somanath Mohanty - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Misc. No. 42 of 1968
Judge
Reported inAIR1969Ori268; 35(1969)CLT411; 1969CriLJ1414
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 383 and 561A; Prisons Act, 1894 - Sections 3(1), 3(2) and 3(3); Prisoners Act, 1900 - Sections 2, 3 and 4
AppellantBhanja Naik
RespondentSomanath Mohanty
Appellant AdvocateG.N. Misra, Adv.
Respondent AdvocateR.N. Misra, Adv.
DispositionApplication dismissed
Cases ReferredR.P. Kapoor v. State of Punjab. This
Excerpt:
.....invited to the provisions of the probation of offenders act, 1958, under which imposition of the sentence of imprisonment was prohibited, the accused being 21 years of age, and accordingly the order passed in the criminal revision was clearly illegal. that case, however, is clearly distinguishable. thus, according to the decision of the supreme court reported in air 1955 sc 633, the judgment in the criminal revision became final as regards both the accused and the state in respect of conviction as well as sentence in all its aspects. is finally and completely determined, would be liable to be reviewed on all sorts of grounds, like an error of law, or error of fact, and the principle of finality of judgment as laid down by the supreme court in air 1955 sc 633, would be a complete dead..........other law for the time being in force-section 561a is a provision which prescribes the inherent power of a high court. if a review of a judgment is permissible under section 561 a, then such review is saved from the absolute bar imposed by section 369 by the opening words thereof, viz., 'save as otherwise provided by this code.' a direct case arose in this court in the case of nalu sahu v. state, reported in air 1965 orissa 7. this case was disposed of by narasimham, c. j. there an application under section 561a of the cr. p. c. for a review and modification of sentence passed on the two petitioners was filed on the ground that the attention of the high court was not invited to the provisions of the probation of offenders act, 1958, under which imposition of the sentence of.....
Judgment:
ORDER

S.K. Ray, J.

1. This is an application seeking to review the operative part of the judgment of this Court dated 23th November, 1967, passed in Cr. Revn. No. 298/66. The operative part of the judgment contained in its last paragraph runs as follows:

'Learned counsel for the petitioner however, states that the accused has already undergone a part of the substantive sentence and that he had had sufficient harassment since the prosecution was launched. While, therefore, maintaining the conviction of the petitioner under Section 420, I. P. C., I would reduce his substantive sentence to the period already undergone, and maintain the sentence of fine, and with this modification in the sentence, the revision is dismissed.'

2. Cr. Revision No. 298/66 was filed by the accused-opposite-party against the confirming order of conviction and sentence dated 28-4-66 passed by Sri S.K. Patra, Sessions Judge of Puri by which he was convicted under Section 420 IPC., and sentenced to R. I. for two months and to pay a fine of Rs. 100/- in default to undergo R. I. for 15 days more.

3. This application has been filed by the informant on whose report the State prosecuted the accused in the criminal proceeding which terminated in the aforesaid Cr. Revision No. 298/66, The State has remained completely indifferent.

4. The main ground for review is that the counsel for the accused in the Criminal Revision made a statement in Court that the petitioner had already undergone a part of the substantive sentence of imprisonment which is untrue, and this constitutes a gross abuse of the process of court. It is, therefore, a proper case where the powers under Section 561A of the Cr. P. C. should be Invoked, the operative part of the order in Cr. Revision No. 298/66 should be reviewed and imprisonment be reimposed as part of the sentence.

5. The accused-opposite-party has countered the aforesaid averments of the petitioner in his affidavit dated 6-5-68 filed in this case. In para 4 of his affidavit he states:

'That upon the conviction of the opposite party by the trial Court on 27-7-64, he surrendered that day at about 1 p. m. to the sentence imposed upon him and was released on bail that day at about 5-30 p.m. Consequently, the period started to run from 1 p m. till 5.30 p.m. and his surrender in the Court and confinement from 1 p.m. to 13.30 p.m. was a part of the period undergone which was available for being taken into account.'

In para 5 he further stated:

'That after the disposal of the appeal by the lower appellate court the opposite party moved this Honourable Court for being released on bail and this Honourable Court was pleased to direct his release. Pursuant to the said order the opposite party surrendered in the court of the Sub-divisional Magistrate, Nayagarh, on 19-7-66 at about 12 noon and was released on bail at about 4 p.m. Hence in law he remained in confinement from 12 noon to 4 p.m. and this period was a part of the period undergone by him'.

He concludes by stating in para 7 that:

'The opposite party can be held to have suffered a period of about eight hours.'

6. Apart from this factual defence, a legal contention has been advanced, viz., that the sentence being a part of the Judgment, cannot be reviewed even though patently erroneous.

7. The averments of facts made by the accused-opposite-party in the absence of any counter have been accepted as correct. Mr. G.N. Misra, learned counsel for the petitioner contends that the few hours of judicial custody which the accused underwent subsequent to his surrender, in obedience to the sentence passed against him cannot be treated as part of the imprisonment. The question to be considered is whether the accused spending those hours in judicial custody could be treated as suffering a part of the sentence of imprisonment imposed upon him. He relies upon Sub-sections (1), (2) and (3) of Section 3 of the Prisons Act, 1894, and Sections 2(b), 3 and 4 of the Prisoners Act, 1900. Section 3(1) of the Prisons Act defines 'prison' as jail or place used permanently or temporarily under the general or special orders of State Government for the detention of prisoners, and includes all lands and buildings appurtenant thereto. Sub-section (2) of Section 3 defines 'criminal prisoner' as any prisoner duly committed to custody under the writ, warrant or order of any Court or authority exercising criminal jurisdiction. Sub-section (3) defines 'convicted criminal prisoner' as any criminal prisoner under sentence of Court. From this, it is argued that until a convicted criminal prisoner is committed to jail custody under a writ, warrant or order of the Court convicting the accused, he cannot be said to have undergone any imprisonment, and the custody of Court inside the court precincts is not jail custody. Section 2(b) of the Prisoners Act, 1900, also defines 'prison' which though less elaborately stated, is covered by the definition of 'prison' under the Prisons Act, 1894. Sections 3 and 4 of the Prisoners Act prescribe the duties of officers in charge of prisons. Section 3 enjoins upon such officer to receive and detain all persons duly committed to his custody by any Court according to the exigency of any writ, warrant or order of such Court. Section 4 provides that the officer after due execution of the writ or order of the Court shall return the same. These provisions, however, are not conclusive on the point whether the court-custody referred to above, is or is not part of the sentence of imprisonment. Section 383 of the Code of Criminal Procedure which deals with the execution of sentence of imprisonment provides that the court passing the sentence shall forthwith forward the warrant to the jail in which the accused is to be confined and shall forward the accused to such jail with the warrant. The expression 'forthwith' is of great significance. It is thus quite clear that as soon as the sentence is pronounced, the accused is to be taken into custody on the strength of a warrant. Such a convicted person is also a criminal prisoner within the meaning of the definition of the term in Section 3 (2) of the Prisons Act. The time that would lapse between the despatch of the warrant and forwarding of the accused to the officer-in-charge of the prison and actual delivery of the accused to said officer would obviously be a part of the term of the sentence of imprisonment. There are cases which have laid down that the sentences of imprisonment operate immediately upon their pronouncement. I held to the same effect in a case State v. Nabin Cbandra Khandapani, 1968-34 Cut LT 32 :(1968 Cri LJ 1152). In the case of Trilochan Das v. State 1961-3 O. J. D., 39 : (1961 (2) Cri LJ 136) Narasimham, C. J. held that period of imprisonment should be computed from the date on which the accused surrendered in court. In other words the imprisonment commences from the point of time of surrender.

In the case of Mullukchand v. The King reported in AIR 1949 Cal 104. it was held that 'rigorous imprisonment for one day and detention till the rising of the Court are not different kinds of punishment. In the case of imprisonment for one day as the day on which the sentence is passed counts as one day and the accused cannot be detained in jail on a warrant issued for such a period.' This clearly supports the view that the term of imprisonment commences as soon as the accused is committed to custody in pursuance of the pronouncement of the judgment, that is to say, the court's custody which is obtained as a result of the judgment of conviction amounts to imprisonment. To the same effect is another decision reported in AIR 1945 Mad 313. In re, Muthu Nadar. It was held there that unless the punishment section fixes a minimum, the court has full discretion to pass a sentence of imprisonment for any period less than the maximum, for instance, till the rising of the Court, because a direction by the Court that a person shall be confined in the Court premises till the Court rises, constitutes imprisonment within the meaning of the Penal and the Criminal Procedure Code. It is true that in this case the provisions of the Prisons Act and the Prisoners Act referred to by Mr. Misra have not been noticed, but there are authorities in support of the view that the judicial lock-up used for detention of undertrial prisoner is also a prison within the meaning of Section 3(1) of the Prisons Act, 1894, vide AIR 1931 Lah 353. Kundanlal v. Emperor, and AIR 1924 Lah 257 (2) Emperor v. Kha-nun. Those provisions merely lay down as to where the accused is to serve out the sentence and provide for the duties and obligations of the officer-in-charge of a jail and do not, either directly or by necessary implication, lay down that the imprisonment shall commence only from the time when the prisoner is actually delivered into the custody of the jailor. I am, therefore, of the view that the accused commences undergoing the sentence of imprisonment imposed by the judgment as soon as the accused is detained in Court custody by reason thereof. Accordingly the accused-opposite-party must be held to have undergone a part of his sentence when Cr. Revn. 298/66 was heard in this Court.

8. That apart, there is another important question raised, and on the view that I take of it, this petition must be rejected. Assuming that the sentence of substantive imprisonment imposed by the court below was modified on a misrepresentation of the counsel for the petitioner in criminal Revision No. 298/66, can this Court in exercise of its power under Section 561A of the Cr. P. C. review its judgment?

9. Section 367 of the Cr. P. C. specifies what the contents of a judgment of a criminal court shall be. Sub-section (2) thereof says that a criminal judgment shall specify the offence of which and the section under which the accused is convicted and the punishment to which he is sentenced. Therefore, there can be no manner of doubt that the sentence passed in the judgment in Criminal Revision No. 298/66 which is sought to be reviewed is apart of the judgment within the meaning of Section 367. Section 369 of the Code provides as follows:

'Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court by the Letters Patent or other instrument constituting such High Court no Court, when it has signed its judgment, shall alter or review the same except to correct a clerical error.'

This section is therefore an absolute bar to alter or review a judgment in substantial portions of it except to correct a clerical error and except as otherwise provided by the Code or by any other law for the time being in force-Section 561A is a provision which prescribes the inherent power of a High Court. If a review of a judgment is permissible under Section 561 A, then such review is saved from the absolute bar imposed by Section 369 by the opening words thereof, viz., 'save as otherwise provided by this Code.' A direct case arose in this Court in the case of Nalu Sahu v. State, reported in AIR 1965 Orissa 7. This case was disposed of by Narasimham, C. J. There an application under Section 561A of the Cr. P. C. for a review and modification of sentence passed on the two petitioners was filed on the ground that the attention of the High Court was not invited to the provisions of the Probation of Offenders Act, 1958, under which imposition of the sentence of imprisonment was prohibited, the accused being 21 years of age, and accordingly the order passed in the Criminal Revision was clearly illegal. Despite that position, the learned Chief Justice held that by reason of the provisions of Section 369. Cr. P. C. and the dictum of the Supreme Court laid down in AIR 1955 SC 633, U. J. S. Chopra v. State of Bombay, the High Court's decision in exercise of its revisional powers becomes final and is not open to review. The remedy, if any, of the aggrieved party, in such cases is by moving the Supreme Court In such manner as the law permitted. He quoted a passage from the decision of the Supreme Court referred to above dealing with the true scope of sections 369 and 430, Cr. P. C. which are quoted herein below.

'It is also true that although the revisional power is not expressly or in terms controlled either by Section 369 or 430, the general principle of finality of judgments attaches to the decision or order of the High Court passed in exercise of its revisional power. But this finality, statutory or general, extends to what is actually decided by the Court and no further.'

In the same line is the decision reported in AIR 1966 Madh Pra 158, State of Madhya Pradesh v. Narain Datta, in which it was held that the finality of the judgment of a judge of the High Court cannot be reviewed or modified in exercise of any power under Section 561A of the Cr. P. C.

10. The decision reported in AIR 1966 Mad 163, S. Rangaswami v. R. N. Narayan, is in full accord with the view taken by the learned Chief Justice in the case reported in AIR 1965 Ori 7.

11. Reliance was, however, placed by Sri G.N. Misra on a decision reported in AIR 1963 Mys 326, In re, Biyamma, which apparently lends support to his contention. That case, however, is clearly distinguishable. There the High Court acting as an appellate court did not decide the appeal on merits, but set aside the judgment of the trial court, and directed retrial being misled to act in that manner by a wrong representation of the counsel. In the present case the criminal revision was disposed of after full hearing in exercise of revisional jurisdiction, and therefore, the principle of finality of judgment is attracted. It appears further that the Supreme Court decision reported in AIR 1955 SC 633 was not cited before that Court in this case. Thus, according to the decision of the Supreme Court reported in AIR 1955 SC 633, the judgment in the criminal revision became final as regards both the accused and the State in respect of conviction as well as sentence in all its aspects. That decision, therefore, cannot be of much assistance to Mr. Misra. That apart, Section 561A saves the inherent power of the High Court for three specified purposes, viz., (1) To give effect to an order under any section of the Cr. P. C. (2) To prevent abuse of process of any court, and (3) To otherwise secure the ends of justice. This is not a case where any order of the Court is sought to be enforced. It is argued that this power is invoked to prevent the abuse of process of Court, viz., to reverse the result reached by reason of misrepresentation of counsel amounting to an abuse of process of court. This, power, however, is to be exercised to prevent, not to cure, such abuse of process of court in respect of any matter before it so long as High Court retains exercisable appellate or revisional jurisdiction over it, and so long as that matter has not been fully and finally disposed of by exhausting all remedial forums available under the Code of Cr. Procedure. Therefore, the second purpose of the section cannot be effectuated. The third question for consideration is whether any ends of justice is to be otherwise secured. It appears to me that in respect of proceedings before it, the High Court can exercise inherent powers so long as it has not become functus officio as regards thereto. If that were not so, then every judgment of the High Court by which a criminal proceeding or matter; is finally and completely determined, would be liable to be reviewed on all sorts of grounds, like an error of law, or error of fact, and the principle of finality of judgment as laid down by the Supreme Court in AIR 1955 SC 633, would be a complete dead letter. I would, therefore, for the very same reasons, as have been stated by Narasimham C, J. in the Orissa case, would adopt the decision of the minority judgment of Mootham, C. J. in the case of Raj Narain v. State AIR 1059 All 315 (FB).

12. Mr. G.N. Misra, learned counsel for the petitioner, cited some decisions of the Supreme Court to elucidate the scope and ambit of Section 561A and to argue on the basis thereof that this is an appropriate case in which that power should be invoked. The first case is the one reported in AIR 1960 SC 866 R.P. Kapoor v. State of Punjab. This case arose out of a proceeding for quashing a criminal proceeding initiated, in Punjab High Court under Section 561A, Cr. P. C. The criminal proceeding was pending in the trial court and it was alleged that further pendency amounted to abuse of process of court and it is in those circumstances that the scope of Section 561A was considered. In dealing with that case, their Lordships said that it is not possible, desirable or expedient to lay down any inviolable rule which would govern the exercise of this inherent jurisdiction and some categories of cases where the inherent, jurisdiction to quash proceedings can be exercised were set out. Nothing there covers a case of the present type where there was no criminal proceeding pending when the power under Section 561A was being invoked and where the High Court had become functus officio by passing its final judgment. It is to be remembered that whenever there is a criminal proceeding in any of the courts subordinate to the High Court, the latters' jurisdiction, either on its appellate side, or its revisional side, is and remains exercisable in respect thereof, till the same is terminated finally. On efflux of such jurisdiction, there is no scope for invoking the inherent power of the High Court under Section 561A of the Code of Criminal Procedure.

13. The next case of the Supreme Court relied upon is AIR 1967 SC 286. This was a case in which, while the appeal before the Mysore High Court was pending, an order was passed for cancelling the bail granted by it, and to direct the appellant to be re-arrested and committed to jail custody. It is against this order of cancellation of bail that the matter was taken to the Supreme Court. The High Court obviously had the jurisdiction inasmuch as the criminal appeal was still pending before it. This case has, therefore, no application for the purpose of resolving the disputed question in hand.

14. Two decisions of the Supreme Court have been relied upon for the proposition that an act of Court shall prejudice no man, and if any injury has been caused to any person by a mistake committed by the Court, then the latter has the inherent power to rectify its own mistake and remedy the injury. But this is not the context in which this principle can be made applicable. Requisite factual background is wanting. No prejudice has been shown to have been caused to the informant. In criminal matters the party who is treated as aggrieved party is the State who is the custodian of the social interest of the community and therefore, if anybody, who is to feel aggrieved by the modification of the sentence of imprisonment, would be the State who has taken a lukewarm attitude in this proceeding.

15. In view of all these, and in view of the authorities cited on both sides, I am not satisfied that I have any jurisdiction left after finally disposing of the Criminal Revision No. 298/66 to alter or modify any part of it.

In the result, this application must failand is dismissed.


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