The State of Madhya Pradesh Home Department vs Man Singh

STATE OF MADHYA PRADESH …APPELLANT(S)

Versus

MAN SINGH …RESPONDENT(S)

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 Signature Not Verified Digitally signed by CHARANJEET KAUR Date: 2019.11.04

of Indian Penal Code, 1860 (for short ‘IPC’). The allegation 17:09:52 IST Reason:

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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

2 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

3 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

Section 482 of CrPC1. 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 2. 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 3. 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 4.

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

4 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

5 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

made to M.C.D. v. State of Delhi & Anr.5

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.

Soupramaniane6 clearly held that grant of benefit of probation

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

7 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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