STATE OF MADHYA PRADESH versus MAN SINGH

[2019] 13 S.C.R.

STATE OF MADHYA PRADESH

MAN SINGH

(Criminal Appeal No. 410 of 2011)

BNOVEMBER 04, 2019

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]

Code of Criminal Procedure, 1973 – s.482 – Power of HighCourt u/s. 482 CrPC to alter the sentence passed by the High Courtitself – Respondent was prosecuted for committing offencesCpunishable u/ss. 468, 471 & 419 of IPC – It was alleged thatrespondent forged certificate and procured appointment to thepost of Buffalo attendant in the veterinary department – Trial Courtconvicted respondent u/ss. 468, 471 & 419 IPC and sentenced himto undergo rigorous imprisonment for one year – On the issue ofDsentence, the respondent urged the benefit of probation of offendersAct, 1958, however, same was declined by the Trial court – Appealwas dismissed by the Appellate Court – In criminal revision, HighCourt affirmed the conviction but reduced the substantive sentencefrom one year to the period already undergone – Respondent filedthe petition u/s. 482 CrPC – High Court extended the benefit ofEProbation Act and directed that sentence which accused has alreadyundergone, would not affect his career – On appeal, held: There isno power to review granted to the Courts under CrPC – As soon asthe High Court had disposed of the original revision petition, upheldthe conviction, reduced the sentence to the period already undergone,Fit became functus officio and, as such, it could not have entertainedthe petition u/s. 482 CrPC for altering the sentence – After sentencehad been imposed and served and fine paid, there was no questionof granting probation – Further, there was violation of the provisionsof s.4 of the Probation Act, which mandates that before passing theorder of probation, it is essential to obtain report of the probationGofficer concerned – Also, High Court had no jurisdiction to passan order that the employee be retained in service, as it is settled thatgrant of probation under the Act does not have bearing so far asthe service of such employee is concerned – The employee cannot

claim right to continue in service on the ground he was releasedon probation – Thus, order of the High Court set aside – Probationof Offenders Act, 1958 – s.4.

Allowing the appeal, the Court

HELD: 1. It is well-settled law that the High Court has nojurisdiction to review its order either under Section 362 or underSection 482 of CrPC. The inherent power under Section 482CrPC cannot be used by the High Court to reopen or alter anorder disposing of petition decided on merits. After disposingof case on merits, the Court becomes functus officio and Section362 CrPC expressly bars review and specifically provides thatno Court after it has signed its judgment shall alter or review thesame except to correct clerical or arithmetical error. Recall ofjudgment would amount to alteration or review of judgment whichis not permissible under Section 362 CrPC. It cannot bevalidated by the High Court invoking its inherent powers.[Para 5] [574-E-F]

2. There is no doubt that the High Court had no power toentertain the petition under Section 482 CrPC and alter thesentence imposed by it. Further, the manner in which theprobation has been granted is not at all legal. The trial court hadgiven reasons for not giving the benefit of probation. When theHigh Court was deciding the revision petition against the orderof conviction, it could have, after calling for report of theProbation Officer in terms of Section 4 of the Probation ofOffenders Act, 1958 granted probation. Even in such case, ithad to give reasons why it disagreed with the trial court and thefirst appellate court on the issue of sentence. The High Court,in fact, reduced the sentence to the period already undergonemeaning thereby that the conviction was upheld and the sentencewas imposed. After sentence had been imposed and served andfine paid, there was no question of granting probation. [Para 6][574-G; 575-A-B]3. Another error is that the order has been passed inviolation of the provisions of Section 4 of the Act which mandatesthat before releasing any offender on probation of good conduct,the Court must obtain report from the Probation Officer andcan then order his release on his entering bonds with or without

BCD

Asureties, to appear and receive sentence when called upon duringsuch period, not exceeding three years, or as the Court maydirect, and in the meantime to keep peace and good behaviour.[Para 7] [575-C-D]

4. In the present case, the accused obtained job on theBbasis of forged documents. Even if he was to be given the benefitof the Act, then also he could not retain his job because the jobwas obtained on the basis of forged documents. This Court isconstrained to observe that the High Court passed the order in amechanical and pedantic manner without considering what arethe legal issues involved. [Para 10] [576-D-E]CState Bank of India & Ors. v. P. Soupramaniane AIR2019 SC 2187 – relied on.

State of Kerala v. M.M. Manikantan Nair(2001) 4 SCC752 : [2001] 3 SCR 203 ;State Rep. by D.S.P.,DS.B.C.I.D., Chennai v. K.V. Rajendran & Ors.2009CriLJ 355 SC ;Hari Singh Mann v. Harbhajan SinghBajwa & Ors. (2001) 1 SCC 169 : [2000] 4 Suppl.SCR 313 ;Sooraj Devi v. Pyare Lal & Anr. AIR 1981SC 736 : [1981] 2 SCR 485 ;M.C.D. v. State of Delhi& Anr.AIR 2005 SC 2658 : [2005] 3 SCR 1010E– referred to.

From the Judgment and Order dated 26.09.2008 of the High Courtof Madhya Pradesh, Bench at Indore in M. Cr.C. No. 5101 of 2008.

Sunil Fernandes, AAG (M.P), Ms. Nupur Kumar, Ms. PriyanshaIndra Sharma, Harsh Parashar, Advs. for the Appellant.

Mrs. Rani Chhabra, Adv. for the Respondent.

The Judgment of the Court was delivered by

DEEPAK GUPTA, J.

1. Whether Judge of the High Court can exercise powers underSection 482 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’)to alter the sentence which has been passed by the High Court itself isthe issue involved in this appeal.

2. The respondent, Man Singh was prosecuted for havingcommitted offences punishable under Sections 468, 471 and 419 of IndianPenal Code, 1860 (for short ‘IPC’). The allegation against him was thathe had used transfer certificate of one Kalu Singh and forged thecertificate to show that it bore his name and date of birth. Using thiscertificate, he had procured appointment to the post of Buffalo Attendantin the Veterinary Department. The trial court convicted the accused forthe offences punishable under Sections 468, 471 and 419 IPC. On theissue of sentence, it was specifically urged before the trial court thatbenefit of Probation of Offenders Act, 1958 (for short ‘the Act’) may begiven to the respondent, Man Singh. The trial court came to the conclusionthat the accused had got service on the basis of forged documentsdepriving deserving unemployed person of getting such employmentand, therefore, according to the trial court, this is not fit case to grantprobation. Accordingly, the trial court imposed punishment under variousprovisions of IPC for different offences but essentially the accused wasto undergo rigorous imprisonment for one year and was to pay totalfine of Rs.2000/-.

3. The accused-respondent, Man Singh filed an appeal. TheSessions Judge dismissed the appeal. On the issue of sentence he foundthat the accused had been dealt with leniently and refused to interferewith the sentence. criminal revision was filed in the High Court. TheHigh Court affirmed the conviction but reduced the substantive sentencefrom one year to the period already undergone and enhanced the fine toRs.10,000/-.

4. The accused-respondent, Man Singh deposited the fine andthen filed petition under Section 482 of CrPC praying that the fine had

Abeen deposited and since he is in Government job, he may be grantedbenefit of the Act. The learned Judge, without giving any other reasons,directed as follows:-

“After having heard learned counsel for the parties, prayer isallowed and the benefit of Probation of Offenders Act is extendedBto the petitioner for the purpose that the sentence, which hasalready undergone would not affect service career of thepetitioner.

With the aforesaid observations petition stands disposed of C.C.today.”

CThis order is challenged before us. At the outset, we note that themanner in which the learned Judge entertained the petition under Section482 CrPC is highly improper and uncalled for. There is no power ofreview granted to the Courts under CrPC. As soon as the High Courthad disposed of the original revision petition, upheld the conviction, reducedDthe sentence to the period already undergone and enhanced the fine, itbecame functus officio and, as such, it could not have entertained thepetition under Section 482 CrPC for altering the sentence.

5. It is well settled law that the High Court has no jurisdiction toreview its order either under Section 362 or under Section 482 of CrPC[1].EThe inherent power under Section 482 CrPC cannot be used by theHigh Court to reopen or alter an order disposing of petition decided onmerits[2]. After disposing of case on merits, the Court becomes functusofficio and Section 362 CrPC expressly bars review and specificallyprovides that no Court after it has signed its judgment shall alter or reviewthe same except to correct clerical or arithmetical error[3]. Recall ofFjudgment would amount to alteration or review of judgment which is notpermissible under Section 362 CrPC. It cannot be validated by the HighCourt invoking its inherent powers[4].

6. We have, therefore, no doubt in our mind that the High Courthad no power to entertain the petition under Section 482 CrPC and alterGthe sentence imposed by it. We may also add that the manner in which

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

3 Hari Singh Mann v. Harbhajan Singh Bajwa & Ors. (2001) 1 SCC 169

H4 Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736

the probation has been granted is not at all legal. The trial court hadgiven reasons for not giving benefit of probation. When the High Courtwas deciding the revision petition against the order of conviction, it couldhave, after calling for report of the Probation Officer in terms of Section4 of the Act, granted probation. Even in such case it had to givereasons why it disagreed with the trial court and the first appellate courton the issue of sentence. The High Court, in fact, reduced the sentenceto the period already undergone meaning thereby that the convictionwas upheld and sentence was imposed. After sentence had been imposedand served and fine paid, there was no question of granting probation.7. Another error is that the order quoted hereinabove has beenpassed in violation of the provisions of Section 4 of the Act whichmandates that before releasing any offender on probation of good conduct,the Court must obtain report from the Probation Officer and can thenorder his release on his entering bonds with or without sureties, to appearand receive sentence when called upon during such period, not exceedingthree years, or as the Court may direct, and in the meantime to keeppeace and good behaviour. The proviso to sub-section (1) of Section 4clearly provides that Court cannot order release of such an offenderunless it is satisfied that the offender or his surety has fixed place ofabode or regular occupation in the place over which the Court canexercise jurisdiction. Sub-section (2) lays down that before making anyorder under sub-section (1), the Court shall take into consideration thereport of the Probation Officer. This Court in number of judgmentshas held that before passing an order of probation, it is essential to obtainthe report of the Probation Officer concerned. Reference in this behalfmay be made to M.C.D. v. State of Delhi & Anr.[5]

8. In the present case, on 03.01.2011, the counsel for the accused-respondent sought an adjournment on the ground that the accusedproposes to file special leave petition (SLP) against the order passedin criminal revision petition upholding his conviction. That SLP was filedbut dismissed on 28.01.2011. Once that SLP has been dismissed, wecannot grant any relief to the accused-respondent.

9. We are also constrained to observe that the High Court in itsorder directed that the sentence which the accused has alreadyundergone, would not affect his service career. We fail to understand

Aunder what authority the High Court could have passed such an order.Even in case where the High Court grants benefit of probation to theaccused, the Court has no jurisdiction to pass an order that the employeebe retained in service. This Court in State Bank of India & Ors. v. P.Soupramaniane[6] clearly held that grant of benefit of probation underthe Act does not have bearing so far as the service of such employee isBconcerned. This Court held that the employee cannot claim right tocontinue in service on the ground that he was released on probation. Itwas observed:

“The release under probation does not entitle an employee to claima right to continue in service. In fact the employer is under anCobligation to discontinue the services of an employee convicted ofan offence involving moral turpitude. The observations made bya criminal court are not binding on the employer who has theliberty of dealing with his employees suitably.”

10. In the present case the accused obtained job on the basis ofDforged documents. Even if he was to be given benefit of the Act, thenalso he could not retain his job because the job was obtained on the basisof forged documents. We are constrained to observe that the HighCourt passed the order in mechanical and pedantic manner withoutconsidering what are the legal issues involved.

E11. In view of the above discussion, the appeal is allowed and theorder of the High Court is set aside. Pending application(s), if any,stand(s) disposed of.

Ankit Gyan

Appeal allowed.

H6 AIR 2019 SC 2187