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SUPREME COURT OF INDIA
Deepak Gupta, Aniruddha Bose, JJ.
STATE OF MADHYA PRADESH – APPELLANT(S)
Versus
MAN SINGH – RESPONDENT(S)
CRIMINAL APPEAL No. 410 of 2011
Decided on : 04-11-2019
(A) Criminal Procedure Code, 1973 – Sections 362 and 482 – Inherent jurisdiction – Scope and ambit – There is no power of review granted to Courts under Cr.P.C. – High Court has no jurisdiction to review its order either under Section 362 or under Section 482 of Cr.P.C. – Inherent power under Section 482 Cr.P.C. cannot be used by High Court to reopen or alter an order disposing of a petition decided on merits – After disposing of a case on merits, Court becomes functus officio – Section 362 Cr.P.C expressly bars review and specifically provides that no Court after it has signed its judgment shall alter or review the same except to correct a clerical or arithmetical error – Recall of judgment would amount to alteration or review of judgment which is not permissible under Section 362 Cr.P.C. – It cannot be validated by High Court invoking its inherent powers. (Paras 4 and 5)
(B) Indian Penal Code, 1860 – Sections 468, 471 and 419 – Probation of Offenders Act, 1958 – Section 4 – Criminal Procedure Code, 1973 – Section 482 – Forgery and cheating – As soon as High Court had disposed of original revision petition, upheld conviction, reduced sentence to period already undergone and enhanced fine, it became functus officio – As such, it could not have entertained petition under Section 482 Cr.P.C. for altering sentence – Trial court had given reasons for not giving benefit of probation – When High Court was deciding revision petition against order of conviction, it could have, after calling for a report of Probation Officer in terms of Section 4 of Act, granted probation – Even in such a case it had to give reasons why it disagreed with trial court and first appellate court on the issue of sentence – High Court reduced sentence to period already undergone meaning thereby that conviction was upheld and sentence was imposed – After sentence had been imposed and served and fine paid, there was no question of granting probation – Even in a case where High Court grants benefit of probation to accused, Court has no jurisdiction to pass an order that employee be retained in service – Accused obtained job on the basis of forged documents – Even if he was to be given benefit of Act, then also he could not retain his job because job was obtained on the basis of forged documents – Order of High Court set aside. (Paras 6, 9, 10 and 11)
(C) Probation of Offenders Act, 1958 – Section 4 – Grant of benefit of probation – Before passing order of probation, it is essential to obtain report of Probation Officer concerned – Court cannot order release of such an offender unless it is satisfied that offender or his surety has a fixed place of abode or regular occupation in the place over which Court can exercise jurisdiction – Employee cannot claim a right to continue in service on the ground that he was released on probation. (Paras 7 and 9)
Facts of the case:
Whether a Judge of High Court can exercise powers under Section 482 of Code of Criminal Procedure, 1973 to alter sentence which has been passed by High Court itself is the issue involved in this appeal.
Findings of Court:
High Court in its order directed that sentence which accused has already undergone, would not affect his service career. We fail to understand under what authority High Court could have passed such an order. Even in a case where High Court grants benefit of probation to accused, Court has no jurisdiction to pass an order that employee be retained in service.
Result : Appeal allowed.
JUDGMENT
Deepak Gupta, J.
Whether a Judge of the High Court can exercise powers under Section 482 of the Code of Criminal Procedure, 1973 (for short 'CrPC') to alter the sentence which has been passed by the High Court itself is the issue involved in this appeal.
2. The respondent, Man Singh was prosecuted for having committed offences punishable under Sections 468, 471 and 419 of Indian Penal Code, 1860 (for short IPC). The allegation against him was that he had used a transfer certificate of one Kalu Singh and forged the certificate to show that it bore his name and date of birth. Using this certificate, he had procured appointment to the post of Buffalo Attendant in the Veterinary Department. The trial court convicted the accused for the offences punishable under Sections 468, 471 and 419 IPC. On the issue of sentence, it was specifically urged before the trial court that benefit of Probation of Offenders Act, 1958 (for short 'the Act') may be given to the respondent, Man Singh. The trial court came to the conclusion that the accused had got service on the basis of forged documents depriving a deserving unemployed person of getting such employment and, therefore, according to the trial court, this is not a fit case to grant probation. Accordingly, the trial court imposed punishment under various provisions of IPC for different offences but essentially the accused was to undergo rigorous imprisonment for one year and was to pay a total fine of Rs. 2000/-.
3. The accused-respondent, Man Singh filed an appeal. The Sessions Judge dismissed the appeal. On the issue of sentence he found that the accused had been dealt with leniently and refused to interfere with the sentence. A criminal revision was filed in the High Court. The High Court affirmed the conviction but reduced the substantive sentence from one year to the period already undergone and enhanced the fine to Rs. 10,000/-.
4. The accused-respondent, Man Singh deposited the fine and then filed a petition under Section 482 of CrPC praying that the fine had been deposited and since he is in Government job, he may be granted benefit of the Act. The learned Judge, without giving any other reasons, directed as follows:-
"After having heard learned counsel for the parties, prayer is allowed and the benefit of Probation of Offenders Act is extended to the petitioner for the purpose that the sentence, which has already undergone would not affect service career of the petitioner.
With the aforesaid observations petition stands disposed of C.C. today."
This order is challenged before us. At the outset, we note that the manner in which the learned Judge entertained the petition under Section 482 CrPC is highly improper and uncalled for. There is no power of review granted to the Courts under CrPC. As soon as the High Court had disposed of the original revision petition, upheld the conviction, reduced the sentence to theperiod already undergone and enhanced the fine, it became functus officio and, as such, it could not have entertained the petition under Section 482 CrPC for altering the sentence.
5. It is well settled law that the High Court has no jurisdiction to review its order either under Section 362 or under Section 482 of CrPC [State of Kerala vs. M.M. Manikantan Nair, (2001) 4 SCC 752]. The inherent power under Section 482 CrPC cannot be used by the High Court to reopen or alter an order disposing of a petition decided on merits [State Rep. by D.S.P., S.B.C.I.D., Chennai vs. K.V. Rajendran & Ors., 2009 CrLJ 355 SC]. After disposing of a case on merits, the Court becomes functus officio and Section 362 CrPC expressly bars review and specifically provides that no Court after it has signed its judgment shall alter or review the same except to correct a clerical or arithmetical error [Hari Singh Mann v. Harbhajan Singh Bajwa & Ors. (2001) 1 SCC 169]. Recall of judgment would amount to alteration or review of judgment which is not permissible under Section 362 CrPC. It cannot be validated
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