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2014 Supreme(Del) 2424
High Court of Delhi
INDERMEET KAUR, J.
Mohit Bansal
Versus
State N.C.T. of Delhi
Crl. M.A. No. 1117 of 2014 In Crl. Appeal No. 828 of 2009
Decided On: 12-11-2014
For the Appellant:Ramesh Gupta, Sr. Advocate With Bharat Sharma, Advocates.
For the Respondent: Navin K. Jha, APP.
The judgment reaffirms the limitations on the court's power to alter a sentence after it has been signed and pronounced, as outlined in Section 362 of the Cr.PC.
Headnote:
Probation - Criminal Law - Probation of Offenders Act, 1958, Section 4 & 6 - Code of Criminal Procedure, 1973, Section 482
Fact of the Case:
The applicant, a chartered accountant, sought probation after being convicted under Section 376 (2)(g) and Section 506 of the Indian Penal Code, 1860 (IPC). His appeal resulted in a conviction under Section 354 of the IPC, with the court noting the period of incarceration already served as his sentence.
Finding of the Court:
The court found that it had no power to alter its own judgment after signing the final order, as stipulated in Section 362 of the Cr.PC. It also cited precedents to support the position that the inherent powers of the court could not be used to alter a sentence after it had been awarded and the judgment signed and pronounced.
Issues: The main issue was whether the court had the jurisdiction to grant probation and alter the sentence after the appeal had been disposed of and the judgment signed and pronounced.
Ratio Decidendi: The court's decision was based on the interpretation of Section 362 of the Cr.PC, which prohibits a criminal court from altering or reviewing a judgment after signing the final order, except to correct a clerical or arithmetical error. The court also relied on precedents to establish that the inherent powers of the court could not be used to alter a sentence after it had been awarded and the judgment signed and pronounced.
Final Decision: The court dismissed the application, finding it without merit.
Indermeet Kaur, J.
1. This is an application filed under Sections 4 & 6 of the Probation of Offenders Act, 1958 (hereinafter referred to as the ‘said Act’) read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.PC) seeking probation in terms of the conviction which has been upheld against the applicant by a Bench of this Court.
2. The averments contained in the application have been perused. It is stated that the applicant is enrolled as a chartered accountant with the Institute of Chartered Accountants of India. He had been convicted by the Sessions Judge under Section 376 (2)(g) as also under Section 506 of the Indian Penal Code, 1860 (IPC).
3. His appeal before a bench of this Court was disposed of on 07.10.2013. His conviction under Section 376 (2)(g) had been set aside and instead he had been convicted under Section 354 of the IPC; his conviction under Section 506-II of the IPC had however been maintained. While disposing of the appeal, the Court had noted that the period of incarceration already suffered by the petitioner (seven months) be treated as his sentence.
4. This appeal was disposed of on 07.10.2013.
5. The present application was filed on 06.01.2014. The foremost submission of the learned counsel for the applicant is that he is not challenging his conviction but seeks benefit of probation; submission being that the period of sentence already undergone by him will cast a stigma on his profession and he will be disqualified by the Institute of Chartered Accountants; in case probation is granted, he will not suffer such disqualification. It is pointed out that this Court has inherent powers under Section 482 of the Cr.PC and such a discretion can be exercised in his favour. Additional submission of the learned counsel for the applicant being that in the Sessions Court, he had been charged only for the offence under Section 376 (2)(g) of the IPC; he has suffered conviction under Section 354 of the IPC for the first time; this charge had not been framed against him and he had not been heard on the point of sentence before the appellate Court; this is an error which has crept in the judgment of the appellate Court. This error can be corrected under the inherent powers of this Court. Learned counsel for the applicant has placed reliance upon ILR (1988) MP 287 Hazi Abdul Rehman & Anr. Vs. Ashok Kumar as also another judgment in 1977 Crl.LJ 532 Kewal Ram Vs. State and Others to support his submission that where in the appellate Court, the appellant had not been granted a hearing on sentence, the High Court in its inherent powers had set aside the sentence and thereafter granted benefit of probation to the said appellants. Additional submission being that the Apex Court has time and again reiterated that where an error has been committed, it is a compulsion of judicial conscience to correct it.
6. Arguments have been negatived.
7. This Court notes that after the appeal had been disposed of by this Court on 07.10.2013 and while altering the conviction of the applicant from Section 376 (2)(g) to Section 354 of the IPC and also modifying the sentence to the period already undergone by him, this Court has become functus officio. This Court, at this stage, has no power to alter its own judgment. This is clearly stipulated in Section 362 of the Cr.PC. There is a clear mandate in the language used in the said Section. It prohibits a criminal Court, after signing its judgment or final order disposing of the case, to alter or review the same except to correct a clerical or arithmetical error. It is not the case of the applicant that by granting benefit of probation and altering his sentesnce from the period already undergone, it would not amount to correcting a clerical or an arithmetical error.
8. The Apex Court in AIR 1981 SC 736 Sooraj Devi Vs. Pyare Lal and Anr had noted that the inherent powers of the Court are not contemplated by the saving provision contained in Section 362 of the Cr.PC. Once the sentenc
