Full Judgment Text
REPORTABLE
| IN THE SUPREME COURT OF INDIA | ||
|---|---|---|
| CRIMINAL APPELLATE JURISDICTION |
CRIMINAL APPEAL NO. 410 OF 2011
| STATE OF MADHYA PRADESH | …APPELLANT(S) | |||||
|---|---|---|---|---|---|---|
Versus
| MAN SINGH | …RESPONDENT(S) |
|---|
J U D G M E N T
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
Signature Not Verified
Digitally signed by
CHARANJEET KAUR
Date: 2019.11.04
17:09:52 IST
Reason:
of Indian Penal Code, 1860 (for short ‘IPC’). The allegation
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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 accusedrespondent, 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
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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 accusedrespondent, 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 the
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period 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
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Section 482 of CrPC . The inherent power under Section 482
CrPC cannot be used by the High Court to reopen or alter an
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order disposing of a petition decided on merits . 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
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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 CrPC. It cannot be
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validated by the High Court invoking its inherent powers .
6. We have, therefore, no doubt in our mind that the High
Court had no power to entertain the petition under Section 482
CrPC and alter the sentence imposed by it. We may also add that
1 State of Kerala v. M.M. Manikantan Nair, (2001) 4 SCC 752
2 State Rep. by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & Ors., 2009 CriLJ 355 SC
3 Hari Singh Mann v. Harbhajan Singh Bajwa & Ors. (2001) 1 SCC 169
4 Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736
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the manner in which the probation has been granted is not at all
legal. The trial court had given reasons for not giving benefit of
probation. When the High Court was deciding the revision
petition against the order of conviction, it could have, after calling
for a report of the Probation Officer in terms of Section 4 of the
Act, granted probation. Even in such a case it had to give
reasons why it disagreed with the trial court and the first
appellate court on the issue of sentence. The High Court, in fact,
reduced the sentence to the period already undergone meaning
thereby that the conviction was upheld and sentence was
imposed. After sentence had been imposed and served and fine
paid, there was no question of granting probation.
7. Another error is that the order quoted hereinabove has been
passed in violation of the provisions of Section 4 of the Act which
mandates that before releasing any offender on probation of good
conduct, the Court must obtain a report from the Probation
Officer and can then order his release on his entering bonds with
or without sureties, to appear and receive sentence when called
upon during such period, not exceeding three years, or as the
Court may direct, and in the meantime to keep peace and good
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behaviour. The proviso to subsection (1) of Section 4 clearly
provides that Court cannot order release of such an offender
unless it is satisfied that the offender or his surety has a fixed
place of abode or regular occupation in the place over which the
Court can exercise jurisdiction. Subsection (2) lays down that
before making any order under subsection (1), the Court shall
take into consideration the report of the Probation Officer. This
Court in a number of judgments has held that before passing an
order of probation, it is essential to obtain the report of the
Probation Officer concerned. Reference in this behalf may be
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made to v.
M.C.D. State of Delhi & Anr.
8. In the present case, on 03.01.2011, the counsel for the
accusedrespondent sought an adjournment on the ground that
the accused proposes to file a special leave petition (SLP) against
the order passed in criminal revision petition upholding his
conviction. That SLP was filed but dismissed on 28.01.2011.
Once that SLP has been dismissed, we cannot grant any relief to
the accusedrespondent.
5 AIR 2005 SC 2658
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9. We are also constrained to observe that the High Court in
its order directed that the sentence which the accused has
already undergone, would not affect his service career. We fail to
understand under what authority the High Court could have
passed such an order. Even in a case where the High Court
grants benefit of probation to the accused, the Court has no
jurisdiction to pass an order that the employee be retained in
service. This Court in State Bank of India & Ors. v. P.
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clearly held that grant of benefit of probation
Soupramaniane
under the Act does not have bearing so far as the service of such
employee is concerned. This Court held that the employee
cannot claim a right to continue in service on the ground that he
was released on probation. It was observed:
“The release under probation does not entitle an
employee to claim a right to continue in service. In fact
the employer is under an obligation to discontinue the
services of an employee convicted of an offence involving
moral turpitude. The observations made by a criminal
court are not binding on the employer who has the liberty
of dealing with his employees suitably.”
10. In the present case the accused obtained a job on the basis
of forged documents. Even if he was to be given benefit of the
Act, then also he could not retain his job because the job was
6 AIR 2019 SC 2187
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obtained on the basis of forged documents. We are constrained
to observe that the High Court passed the order in a mechanical
and pedantic manner without considering what are the legal
issues involved.
11. In view of the above discussion, the appeal is allowed and
the order of the High Court is set aside. Pending application(s), if
any, stand(s) disposed of.
…………………………….J.
(Deepak Gupta)
……………………………..J.
(Aniruddha Bose)
New Delhi
November 04, 2019
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