A court cannot alter its judgment or final order after it is signed, except to correct clerical errors, as established under Section 362 of the Criminal Procedure Code.

JUDGMENT :

Anil Kumar Choudhary, J.

Heard the parties.

2. This Writ Petition (Cr.) has been filed invoking the jurisdiction of this Court under Article 226 of the Constitution of India with a prayer for quashing the letter No.544 of 2024 dated 19.09.2024 issued by the learned Judicial Magistrate 1st Class, Dhanbad, a copy of which has been annexed as Annexure- 5 whereby and where under the learned Judicial Magistrate has modified the sentence awarded to the petitioner by way of a letter to the Superintendent of Jail, Mandal Jail, Dhanbad.

3. The brief facts of the case is that the petitioner has been convicted in C.P. Case No.522 of 2017 passed by the learned Judicial Magistrate 1st Class, Dhanbad for having committed the offence punishable under Section 138 of the Negotiable Instruments Act. The writ petitioner has been sentenced to a substantive sentence of simple imprisonment of 10 months. Further a fine of Rs.14,00,000/- has also been imposed upon the petitioner and it has been ordered that in default of fine, the petitioner has to undergo imprisonment for 10 months but even though only a single offence was involved for which the petitioner has been convicted, in the tabular chart incorporated in the order of sentence by the learned Magistrate, under the heading “sentence to run” the word “concurrently” has been mentioned. The judgment of the conviction and order of sentence passed by the learned Judicial Magistrate 1st Class, Dhanbad in the said C.P. Case was challenged by the petitioner before the learned Sessions Judge, Dhanbad by filing Criminal Appeal No.146 of 2022. The learned Sessions Judge, Dhanbad, vide judgment dated 31.03.2023 in the said Criminal Appeal No.146 of 2022, dismissed the criminal appeal. Vide letter No.2671/Jail, Dhanbad dated 18.09.2024, the copy of which has been annexed as Annexure-4 of this Writ Petition (Cr.), the In-Charge Superintendent, Mandal Jail, Dhanbad wrote a letter to the learned Judicial Magistrate 1st Class, Dhanbad or its successor court intimating therein that though the concurrent running of sentence arises when there are sentences imposed by a court convicting any accused, in respect of more than one offences, therefore, the in-charge Superintendent of Mandal Jail sought clarification in this matter.

4. In response to the said letter of the Superintendent of Mandal Jail, the learned Magistrate intimated by its letter, the copy of which has been annexed as Annexture 5 of this writ petition, to the In-charge Superintendent of Mandal Jail, Dhanbad that because of typing mistake the word ‘consecutively’ has been written as ‘concurrently’ and the imprisonment to be undergone in default of payment of fine will be in excess of the substantive sentence as per Section 64 of the INDIAN PENAL CODE and the words ‘shall’ used in Section 64 of the INDIAN PENAL CODE makes it mandatory for convict to undergo the imprisonment in default of payment of fine consecutively. Hence, it was clarified that the sentence of default fine of 10 months shall be in addition to the sentence of 10 months awarded under Section 138 of the Negotiable Instruments Act to convict i.e. this Writ Petitioner.

5. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Sunita Jain vs. Pawan Kumar Jain & Others reported in (2008) 2 SCC 705, para-30 to 32 of which reads as under:-

“30. To us, the learned counsel for the appellant is right that in substance and in reality, the High Court has exercised power of review not conferred by the Code on a criminal court. Section 362 of the Code does not empower a criminal court to alter its judgment. It reads thus:

“362. Court not to alter judgment