9911796707
TMI Blog2011 (5) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... e Cr.P.C. Incidentally the question to be decided is whether invocation of the powers under S. 482 for the purpose of enlarging the time fixed under a judgment passed in revision is permissible in view of the limitations prescribed by S. 362 of the Cr.P.C. which is to the effect that no court when it has signed its judgment or final order of disposal of a case shall alter or review the same except to correct clerical or arithmetical errors. The Criminal Revision Petitions in all these cases were filed by accused persons challenging their conviction and sentence by the trial court and the appellate court for offences under S. 138 of the Negotiable Instruments Act. This Court while disposing of the Criminal Revisions would confirm the conviction recorded by the Trial Court and the appellate court, yet would set aside the sentence and direct the accused to pay fine amounts with default sentence providing that on realisation of the fine amount, the same shall be paid to the complainant as compensation under S. 357(1)(b) of the Code of Criminal Procedure. This Court had appointed firm dates under the orders passed in the Criminal Revision Petitions for appearance of the accused for paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rikhia v. Dolley Mukherjee, (1990 (2) KLT SN 22 (C. No. 32) SC : (1990) 2 SCC 437), Smt. Sooraj Devi v. Pyare Lal, (1981 KLT SN 21 (C. No. 38) SC : (1981) 1 SCC 500). Dr. Raghubir Saran v. State of Bihar Anr. AIR 1964 SC 1, Raj Kapoor and Others v. State (Delhi Administration) Ors., AIR 1980 SC 258), Puran v. Rambilas Anr., (2001 (2) KLT SN 80 (C. No. 102) SC : (2001) 6 SCC 338), Mary Angel Ors. v. State of T.N., (1999(2) KLT SN 70 (C. No. 76) SC : (1999) 5 SCC 209), Dinesh Dutt Joshi v. State of Rajasthan, (2001) 8 SCC 570), State v. Navjot Sandhu, (2003(2) KLT SN 101 (C. No. 132) SC : (2003) 6 SCC 641), Mahendra Singh and others v. State of Bihar , (2002) 10 SCC 678, Sankatha Singh Ors. v. State of Uttar Pradesh, AIR 1962 SC 1208, Municipal Corporation of Delhi v. Ram Krishan Rohtagi, AIR 1983 SCC 67), Roshanali v. State of Gujarat, AIR 1982 SCC 784 and Hari Singh Mann v. Harbhajan Singh Bajwa, AIR 2001 SC 43). The learned counsel also referred to the judgment of this Court in Dharmarajan v. State of Kerala, 1995(1) KLT 732). The key point canvassed by Sri. Sunny Mathew and other learned counsel for the applicants/revision petitioners was that power should be conceded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modifying the sentence of imprisonment which had been passed by the trial court and the appellate court as one of imprisonment till rising of the court and payment of fine. It was directed by the High Court in the final order passed in the Criminal Revision Petition that if fine is realised the same will be paid to the complainant as compensation under S. 357(1)(b). Thereafter, probably after the period fixed by the High Court for payment of fine, the parties filed petition for acceptance of the composition entered between them reporting that instead of depositing the fine amount in the court, the amount was directly paid by the accused to the complainant It was invoking the powers under S. 482 Cr.P.C. and under S. 147 that the above petition was filed. The learned Single Judge has taken the view relying on the judgment of the Supreme Court in Sankatha Singh's case (cited supra) that inherent powers of the High Court are not to be exercised for doing what the Code specifically prohibits the court from doing. For taking such a view, the learned Single Judge relied also on the judgment of the Supreme Court in Mohd. Yaseen v. State of U.P., (2007) 7 SCC 49) and in R. Rajeshwari v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that inherent powers of the High Court under S. 482 is intended for preventing the abuse of process of court and for securing the ends of justice has reiterated that such powers are as such controlled by principles and precedents as are its express powers and statutes and cannot be exercised to do something which is expressly barred under the Code. It has been stated that the powers under S. 482 cannot be invoked for overriding a bar of review under S. 362. However, it has been observed by the Supreme Court in the same judgment that if there has been changes in the circumstances of the case (obviously after the final order was passed by the High Court in the main case) it would be in order, for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent abuse of process of court. Jurisdiction was declined in that case as it was found that there was no change in circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order. We will immediately notice that there is no comparison between the facts in Simrikhia's case (supra) and the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ringly. The judgment of the Supreme Court in Raj Kapoor Ors. v. State (Delhi Administration), AIR 1980 SC 258 only draws the distinction between the revisional powers under S. 397 and the inherent powers under S. 482 and rules that inherent power under S. 482 does not stand repelled even when revisional power under S. 397 overlaps. This judgment also does not have much to do directly with the issue that is referred to us. The judgment of the Supreme Court in Puran v. Rambilas Anr., (2001(2) KLT SN 80 (C. No. 102) SC : (2001) 6 SCC 338) and connected cases also takes the same view and does not deal directly with the issue that we are called upon to answer. 8. The Supreme Court in Mary Angel Ors. v. State of T.N., (1999(2) KLT SN 70 (C. No. 76) SC : (1999) 5 SCC 209) has dealt with the scope and ambit of the inherent powers of the High Court saved and recognized by S. 482 of the Cr.P.C. Their Lordships held that S. 482 Cr.P.C. stands independently from the other provisions of the Code and it expressly saves the inherent powers of the High Court. Therefore, to prevent abuse of the process of court or otherwise to secure the ends of justice, the High Court is empowered to pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here its express powers do not negative the existence of such inherent power. The further condition for its exercise, insofar as cases arising out of the exercise by the subordinate courts of their criminal jurisdiction are concerned, is that it must be necessary to resort to it for giving effect to an order under the Code of Criminal Procedure or for preventing an abuse of the process of the court or for otherwise securing the ends of justice. In Dinesh Dutt Joshi v. State of Rajasthan, (2001) 8 SCC 570) their Lordships of the Supreme Court state that S. 482 Cr.P.C. confers upon the High Court inherent powers and goes on to say that such power is conferred as every court has the inherent power to act ex debito justitiae - to do that real and substantial justice for the administration of which alone it exists. The Supreme Court states the principle embodied in the section is based upon the maxim quando lex aliquid alicui concedit, concedere videturer id sine quo res pisae esse non protest i.e., when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. According to the Supreme Court the Section has been embodied to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erring Sections 68 and 69 of I.P.C. that the stipulations in a judgment fixing a date for payment of the fine amount and providing for default sentence of imprisonment on failure to pay fine are not to be read or understood to imply that thereafter even if the amount of fine is paid in full the default sentence will have to be undergone. Having regard to the nature of the offence under S. 138, we feel that in situations where the accused is ready to pay the compensation amount to the satisfaction of the complainant and the complainant is willing to receive the compensation amount from the accused the endeavour of the court should be to facilitate such payment and receipt albeit a little delay as the same will result in extinction of all causes of action and grant full and final relief to both sides. 11. The interplay between Sections 482 and 362 of the Cr.P.C. was again considered by the Supreme Court in Hari Singh Mann v. Harbhajan Singh Bajwa, AIR 2001 SC 43) and while deprecating the practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court, the Supreme Court has observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the Cr.P.C. are to be invoked very sparingly and only in exceptional circumstances. It is also clear that when there are statutory provisions providing expressly for granting the reliefs sought for, it is those provisions which are to be invoked and not the inherent powers recognized under S. 482. We also notice that preponderance of judicial authority is to the effect that inherent powers under S. 482 cannot be invoked for overreaching clear interdicts created by statutory provision. Above all we notice that inherent powers are conceded to the High Court under S. 482 with the object of securing ends of justice and for giving effect to orders passed under the Code of Criminal Procedure and also for preventing abuse of process of any court including the High Court. We are sure that the inherent powers under S. 482 are not to be invoked successively in the same case and on the same set of facts. For answering the issue it will be necessary to consider whether by allowing an application for enlargement of time, for payment of the fine, fixed under the original order passed by the High Court, the High Court is altering or reviewing the original order to the extent of having a re-l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciple that the Criminal Court even if it be the highest court of the State has no power to review its own judgments and orders. We believe that the essential purpose for which courts are established is rendition of justice to the parties on the disputes that come up before them for decision. The policy of the court shall be to achieve the constitutional goal of promoting equal justice and we believe that such goal is best achieved by facilitating a settlement of all the issues between the parties fully and finally. According to us, all issues between the parties to a proceeding under S. 138 of the N.I. Act will stand settled fully and finally only when the complainant instrument holder realises the debt due to him from his debtor the drawer of the dishonoured instrument As already noticed by us, Thomas P. Joseph (J) himself after taking the view that the inherent powers under S. 482 cannot be invoked to overreach the statutory bar under S. 362 has ensured justice to both sides by issuing directions which have the effect of bringing forth a complete quietus on issues between the parties. 14. We have also no doubt in our mind that post revisional composition is not permissible ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
