Dismissed

Sri Manjunath Urf Manju S/O Jambanna Agastavar v. the State of Karnataka

Karnataka HC25 Oct 2024CRL.RP/100171/2024

Case brief

AI extract

What is this about?

Convicted accused sought review/recall of the High Court's earlier dismissal of their revision petition to obtain set-off benefit under Section 428 Cr.P.C., claiming full sentence served. Holding that no power of review exists under criminal jurisprudence beyond clerical corrections, and that a second application was barred by Section 397(3), the Court dismissed the petition.

What the court decided

AI extract

Sri Manjunath Urf Manju S/O Jambanna Agastavar… — Criminal Trial and Appeal | Karnataka HC (2024)

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NC: 2024:KHC-D:15617 CRL.RP No. 100171 of 2024

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 25^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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CRIMINAL REVISION PETITION NO. 100171 OF 2024 (397 OF CR.P.C./438 OF BNSS)

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BETWEEN:

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SRI MANJUNATH URF MANJU S/O. JAMBANNA AGASTAVAR, AGED ABOUT 34 YEARS, OCC: COOLIE, R/O. CHENDIYA VILLAGE, TQ AND DIST. KARWAR-581308.

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MANJUNATH URF MANJU S/O. HULIGEPPA GAVADI, AGED ABOUT 25 YEARS, OCC: COOLIE, R/O. CHENDIYA VILLAGE, TQ AND DIST. KARWAR-581308.

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…PETITIONERS

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(BY SRI AMAR CORREA, FOR SRI VISHWANATH S. BICHAGATTI, ADVOCATE.)

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MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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AND:

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THE STATE OF KARNATAKA R/BY KARWAR TOWN POLICE STATION, THROUGH STATE PUBIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH-580011.

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…RESPONDENT

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(BY SRI JAYARAM SIDDI, HCGP.)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 362 READ WITH SECTION 482 OF CR.P.C., SEEKING TO

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a) CALL FOR THE RECORDS OF THE HIGH COURT OF KARNATAKA, DHARWAD BENCH IN CRIMINAL REVISION

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NC: 2024:KHC-D:15617 CRL.RP No. 100171 of 2024

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PETITION BEARING NO.100113/2020, CRL. APPEAL NO.26/2019 PENDING ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, UTTARA KANNADA, KARWAR, TRIAL COURT RECORDS IN C.C.NO.38/2015 PENDING ON THE FILE OF CHIEF JUDICIAL MAGISTRATE, KARWAR, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 457, 380 R/W SECTION 34 OF IPC, AND REVIEW THE ORDER DATED 27.11.2020;

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b) HOLD THAT, THE PETITIONERS/ACCUSED NO.1 AND 2 ARE IN JUDICIAL, CUSTODY IN THIS CASE IN C.C.NO.38/2015 BEFORE CHIEF JUDICIAL MAGISTRATE, KARWAR, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 457, 380 R/W SECTION 34 OF IPC FROM 14.10.2014, THEIR DATE OF REMAND AND FURTHER HOLD THAT, THE PETITIONERS HAVE UNDERGONE FULL SENTENCE AS IMPOSED UPON THEM BY JUDGMENT AND ORDER DATED 22.06.2018;

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c) DIRECT THE RELEASE OF THE PETITIONERS/ACCUSED NO.1 AND 2 IN THIS CASE FROM JUDICIAL CUSTODY;

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d) PASS SUCH OTHER ORDERS AS THIS HON’BLE COURT DEEMS FIT TO MEET THE ENDS OF JUSTICE. THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER

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WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR)

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Heard the learned counsel Sri Amar Korrea along with Sri Vishwanath S. Bichagatti, for petitioners and learned HCGP for the respondent State.

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This petition is filed by the petitioners by invoking

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the provisions of section 362 read with section 482 of the

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Code of Criminal Procedure, 1973. The prayer sought in this petition is as under:

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a) Call for the records of the High Court of Karnataka, Dharwad Bench in Criminal Revision Petition bearing No.100113/2020, Crl. Appeal No.26/2019 pending on the files of Principal District and Sessions judge, Uttara Kannada, Karwar, Trial Court records in CC No.38/2015 pending on the files of Chief Judicial Magistrate, Karwar, for the offences punishable under sections 457, 380 R/w Section 34 of IPC, and review the order dated 27.11.2020;

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b) Hold that, the Petitioners/Accused No.1 and 2 are in judicial, custody in this case in CC No.38/2015 before Chief Judicial Magistrate, Karwar, for the offences punishable under sections 457, 380 R/w Section 34 of IPC from 14.10.2014, their date of remand and further hold that, the petitioners have undergone full sentence as imposed upon them by judgment and order dated 22.06.2018,

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c) Direct the release of the Petitioners/Accused No.1 and 2 in this case from judicial custody.

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d) Pass such other orders as this Hon’ble Court deems fit to meet the ends of justice.

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Brief facts in this case are that, on the basis of an

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incident dated 17.01.2013, respondent Karwar Town Police registered Crime No.10/2013 for the offences punishable

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under sections 454, 380 of IPC against the petitioners, arraigned them as accused Nos.1 and 2. The charge sheet came to be filed against the petitioners/accused and the petitioners were convicted by the trial Court for the said offences.

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The petitioners/accused challenged the said order of conviction passed by the trial Court before the Prl. District and Sessions Court in Crl.A.No.26/2019, wherein the appellate Court confirmed the judgment of conviction. However, the benefit of set off under section 428 of Cr.P.C. for the period of detention undergone during the enquiry and trial, was extended to the petitioners, by its order dated 20.02.2019.

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The petitioners/accused preferred criminal

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revision petition before this Court challenging the order of the appellate Court. After providing reasonable opportunity of hearing, this Court rejected the petition by a detailed order dated 27.11.2020.

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The petitioners being aggrieved by the order passed by this Court in the revision petition are before this Court seeking a review of the order passed in the revision petition. However, in the prayer sought for, the petitioners have sought to call for the records and consider this petition once again to review the order passed by this Court.

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It is vehement contention of the learned counsel Sri Amar Korrea representing the petitioner that the impugned order passed by this Court requires to be recalled to the extent of denial of benefit of the provisions of section 428 of Cr.P.C. on the ground of mitigating circumstances and legal grounds urged and on several other grounds urged in this petition.

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Learned counsel for the petitioners submits that petitioner No.2 being a juvenile as on the date of occurrence of the incident, could not have been subjected to trial all along and convicted for the offence and therefore the order passed by the trial Court, the appellate Court and this Court is bad in law as petitioner No.2 ought to have been referred to the Juvenile Justice Board to be subjected to trial in

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accordance with law. Learned counsel has also argued on the provisions of section 267 of Cr.P.C., section 260 to 270 of Cr.P.C., which was not extended to the petitioners/accused. On these grounds he contends that the order passed requires to be recalled and reviewed. It is further contention of the learned counsel for the petitioners that the petitioners have been in custody for more than 10 years and non extending the benefit of set off is illegal, arbitrary, which has not been considered by this Court and hence, he has approached before this Court to invoke the review jurisdiction to recall the order and review the impugned order by extending the benefit.

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Learned counsel for the petitioners has relied on

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the following judgments in support of his case:

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1. S. Nagaraj & Others v/s State of Karnataka & another, 1993 (Suppl) 4 SCC 595.

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State of Punjab v/s Davinder Pal Singh Bhullar & others (2011) 14 SCC 770.

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Sushil Kumar Mohanka & other v/s State of West Bengal & another, 2024 SCC Online CAL 639.

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4. Prem Kumar Agrawal V/s State of Bhiar & others, 2014 SCC Online PAT 3408.

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New India Assurance Company Limited V/s Krishna Kumar Pandeny, (2021) 14 SCC 683.

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Daxaben V/s State of Gujarat and others, 2022 SCC Online SC 936.

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Inayathulla N VS. State by Police Sub Inspector and another, in Crl P No.13141/2023.

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Kumar Ghimirey V/s State of Sikkim, (2019) 6 SCC 166.

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Govind Ramji Jadhav V/s State of Maharashtra, (1990) 4 SCC 718.

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Sahab Singh & others V/s State of Haryana, (1990) 2 SCC 385.

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Surjit Singh & others V/s State of Punjab, 1984 Supp SCC 518.

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CBI v/s Kenche Mahesh Kumar @ Karapudi Mahesh, ILR 2015 KAR 4054.

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Gaurav Geol v/s State of Karnataka & others, ILR 2015 KAR 4675.

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M. Shashidhara & another v/s State of Karnataka, 2022 SCC Online KAR 1823.

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The sum and substance of the arguments put

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forth by the learned counsel for the petitioners is that the petitioners/accused have already undergone the entire sentence by the time the judgment was passed by the trial

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Court convicting and sentencing them to serve imprisonment for two years, whereas the sentence served by the accused is more than three years in each of the cases. In all the judgments the trial Court directed the concurrent running of the sentences. According to the learned counsel for the petitioners, accused in all the cases have completed the imprisonment in four cases already and in the remaining five cases the accused deserved to be permitted to avail the benefit of set off and the same should be in consonance to the provisions of section 428 of Cr.P.C. On these grounds learned counsel seeks indulgence of this Court to recall and also the review the judgment passed by this Court.

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Per contra, the learned HCGP Sri Jairam Siddi appearing for the State vehemently contends that primarily the petition filed by the petitioners itself is not maintainable in law for the simple reason that the petition is styled as revision petition as per the order sheet of the registry. So also the prayer made by the petitioners reflects to call for records of the High Court in Revision Petition No.100113/2020 and the appeal pending before the

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appellate Court and the trial Court and to review the order passed by this Court on 27.11.2020. Therefore, the learned HCGP contends that as contemplated under section 397(3) of Cr.P.C., there is no provision in law and rather there is a bar to file a second application or petition as clearly stated under section 397(3) of Cr.P.C. Therefore, the petitioners in this case are not clear as to whether they are invoking the provisions of section 397 of Cr.P.C. though it is styled as revision petition in the prayer as to whether they are invoking the revisional powers of this Court or seeking a review. Either way even if the petitioners are seeking to invoke the revisional powers of this Court, the petitioners are barred under section 397(3) of Cr.P.C. as the same cannot be invoked, as the very same petitioners have filed this petition for the second time.

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Secondly, the learned HCGP contends that if the petitioners are seeking to invoke the review jurisdiction, the same is not contemplated under the criminal jurisprudence as the petitioners have filed the petition invoking the provisions of section 362 read with section 482 of Cr.P.C. to

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review the order passed by this Court. Hence, learned HCGP contends that either way this petition is not maintainable in law and would have to be dismissed with exemplary costs as the petitioners have styled it in both the manner i.e., revision petition as well as review petition.

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Having heard the learned counsel for the petitioners and the learned HCGP for the State, vehement submissions are made by the learned counsels relying on the judgment of the Hon’ble Apex Court in the case of State of Punjab vs. Davinder Pal Singh Bhullar and others, reported in (2011) 4 SCC 770 and other judgments hereinabove mentioned to contend that the petition would be maintainable, more specifically relying on paragraph No.46, which reads as under:

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If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 CrPC

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would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault.

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It is contended by the learned counsel for the

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petitioners that this Court can review its order in view of a manifest error being committed and provide the opportunity of set off which was negatived on the grounds stated in the order. It is relevant to extract the provisions of section 397(3) of Cr.P.C. for the sake of better understanding, which reads as under:

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397. Calling for records to exercise powers of revision.—

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(1) xxxxx…xxxx….xxxx…

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(2) xxxxx…xxxx….xxxx…

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(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.”

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It is also relevant to extract section 362 of Cr.P.C.

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as to understand whether there is any power vested with this Court to review or recall the order once passed by this Court.

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Court not to alter judgment

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Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

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Having gone through the provisions of section 397(3) of Cr.P.C, there is no doubt in the mind of this Court as the provisions are very clear with regard to a second application being filed by the revision petitioners by the same revision petitioners cannot be entertained by this Court. Secondly section 362 of Cr.P.C. clearly states under what circumstances it can exercise the powers under section 362 of Cr.P.C. It is also clearly stated that no Court when it had signed its judgment or final order disposing of the case, shall alter or review the same except to correct the clerical or arithmetical error. There is no ambiguity in the said provision and it is crystal clear that this provision provides

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for alteration or correction could be done if there is any clerical or arithmetical error and not otherwise.

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The Hon’ble Apex Court in the case of Hari Singh Mann vs. Harbhajan Singh Bajwa and others, reported in (2001) 1 SCC 169 had an occasion to deal with such matters and has laid down the law. It is no more res integra that under criminal jurisprudence there is no provision in the Code of Criminal Procedure authorizing the High Court to review its judgment passed either in exercise of its appellate, revision or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of section 482 of the Code, as stated in paragraph No.9 of the said judgment in the case of Hari Singh Mann. So also at paragraph No.10 of the said judgment, it is stated as under:

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Section 362 of the Code mandates that no court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error. The section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a

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court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error. The reliance of the respondent on Talab Haji Hussain case is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561-A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7-1-1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment.

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It is also relevant to note the case of State of

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Madhya Pradesh vs. Man Singh, reported in (2019) 10

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SCC 161, the Hon’ble Supreme Court has held in paragraphs No.6 and 7 as under:

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6. 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

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courts under CrPC. As soon as the High Court had disposed of the original revision petition, upheld the conviction, reduced the sentence to the 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.

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It is well settled law that the High Court has no jurisdiction to review its order either under Section 362 or under Section 482 CrPC. 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. 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. Recall of judgment would amount to alteration or review of judgment which is not permissible under Section 362 CrPC. It cannot be validated by the High Court invoking its inherent powers.

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Learned counsel for the petitioners relies on the judgment in the case of Daxaben vs. State of Gujarat and others, reported in 2022 SCC Online SC 936, wherein he relies on paragraphs No.21 to 24 to substantiate his case, which read as under:

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“21. In Krishna Kumar Pandey (supra) this Court referred with approval, to the judgment of

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this Court in State of Punjab v. Davinder Pal Singh Bhullar where this Court held that the High Court was not denuded of inherent power to recall a judgment and/or order which was without jurisdiction, or in violation of principles of natural justice, or passed without giving an opportunity of hearing to a party affected by the order or where an order was obtained by abusing the process of court which would really amount to its being without jurisdiction. Inherent powers can be exercised to recall such orders.

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The High Court rightly found, in effect, that it had the inherent power to recall a judgment and/or order which was without jurisdiction or a judgment and/or order passed without hearing a person prejudicially affected by the judgment and/or order. The High Court, however, fell in error in not recalling the order dated 20^th October 2020. The High Court did not address to itself, the question of whether it had jurisdiction to quash a criminal complaint under Section 306 of the IPC, which is a grave noncompoundable offence, entailing imprisonment of ten years, on the basis of a settlement between the parties.

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The High Court erred in declining the prayer of the Appellant for recalling its order dated 20^th October 2020, passed without hearing the wife of the deceased only because the original informant-complainant, a cousin brother and an employee of the deceased had been heard. Hearing a cousin-cum-employee of the deceased cannot and does not dispense with the requirement to give the wife of the deceased a hearing. The wife of the deceased would have greater interest than cousins and employees in prosecuting accused persons charged with the offence of abetting the suicide of her husband.

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24. Be that as it may, since the initial order dated 20^th October 2020 is also under challenge in these appeals, it is really not necessary for this Court to delve deeper into the question of whether a final order passed under Section 482 of the Cr.P.C. quashing an FIR could have, at all, been recalled by the High Court, in the absence of any specific provision in Cr.P.C. for recall and/or review of such order. The High Court has, in effect, held that in exceptional circumstances, such orders can be recalled, in exercise of the inherent power of the High Court, to prevent injustice.”

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20. So also in the case of S.Nagaraj and others vs.

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State of Karnataka and another, reported in 1993 Supp (4) SCC 595, on paragraph No.18, which reads as

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under:

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18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error.

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Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (Sahai, J.) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistants due to State's failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue.

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21. On a careful perusal of these judgments, it is

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seen that in all these cases the Hon’ble Apex Court has consistently held that inherent power to recall the judgment or order, which is passed without jurisdiction or in violation of principles of natural justice or where it is passed without providing an opportunity of hearing to a party effected by the order would amount to an order being passed without jurisdiction. In such cases inherent powers of this Court can be exercised to recall such order and hear the matter as no

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opportunity was given or there was no jurisdiction. In such cases no doubt this Court will have inherent powers to exercise to recall such order which would amount to an order in nullity. Whereas, in the present case on hand the petitioners having been unsuccessful before the trial Court and having suffered the judgment of conviction and order of sentence, having challenged the same before the appellate Court, the appellate Court considered and dismissed the appeal by providing the benefit of the provisions of section 428 of Cr.P.C. for the period of enquiry and trial, the same is when questioned before this Court, this Court after hearing the learned counsels on merits of the matter, dismissed the petition by a detailed order.

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Under the circumstances, the question of entertaining this petition after a detailed order is passed by this Court would amount to revisiting the judgment once again and re-appreciating the same on the merits of the matter, which is not contemplated in any of the provisions contained in the Code of Criminal Procedure, in my humble opinion it would be an injustice and irregularity if this Court

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were to again venture into making/expressing any opinion of its own judgment, which was earlier decided on the order passed by this Court after affording reasonable opportunity to both the parties and having decided the same on merits.

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It is not the case herein that the orders which are passed are without jurisdiction and that no opportunity was provided. Therefore, the question of entertaining this petition would not arise for the reasons already stated by me earlier. The judgments of the Hon’ble Apex Court also reiterate and have laid down the law with regard to the Courts rehearing the matter in the guise of review or revision or for that matter recall of the order when the matter has been already decided on merits is impermissible in law. It is relevant to mention that this Court has earlier passed the order on merits and once the order is passed, signed and delivered, this Court becomes functus officio and as such would not be empowered to pass any further order in the matter. So also the provision of section 362 of Cr.P.C. is very clear that no order can be passed except to correct any clerical or arithmetical error committed by the Court.

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Under the circumstances, I do not find any good ground or reason to entertain this petition on both the counts (i) on the count of recalling the order or reviewing the order, for that matter, so also (ii) exercising the jurisdiction under section 482 of Cr.P.C., which again would be uncalled for and legally improper. Under the circumstances, I pass the following:

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ORDER

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This petition/application is dismissed.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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MRK CT-MCK List No.: 2 Sl No.: 9

Sri Manjunath Urf Manju S/O Jambanna Agastavar v. the State of Karnataka

Case brief

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Sri Manjunath Urf Manju S/O Jambanna Agastavar v. the State of Karnataka

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