Comparative Analysis of the hierarchy, Jurisdiction and powers of Criminal courts to impose sentences as per provisions of CR.P.C and BNSS 2023

S 4 of CRPC(S 4 of BNSS)- Trial of offences under the Indian Penal Code and other laws.—(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

S 5 of CRPC (S 5 of BNSS)- Saving.—Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

 Chapter II

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Under which circumstances the revisional court should not discharge accused?

Thus, this Court is of the firm opinion that if a strong suspicion exists in the mind of the court at the stage concerned, then the same is sufficient for the court to proceed with the framing of the charge against the accused person(s). And if a prayer for discharge has been made before a revisional court, then the same may only be allowed if the court finds that the materials on record are wholly insufficient for the purpose of trial. {Para 13}

 14. In view of the aforementioned precedential backdrop and the observations made hereinabove this Court does not find any legal infirmity in the impugned order passed by the learned court below so as to warrant any interference, at this stage.

 In the High Court of Rajasthan

(Before Pushpendra Singh Bhati, J.)

Sudhir Bordiya Vs State

S.B. Criminal Revision Petition No. 27 of 2021

Decided on April 20, 2022

Citation: 2022 SCC OnLine Raj 765 : (2022) 3 RLW 2010 : 2023 Cri LJ 96.

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Whether court can review it own order if it has failed to consider possibility of reformation of accused while passing death sentence?

  It would be profitable to refer to a judgment of this Court in Mohd. Mannan v. State of Bihar, (2019) 16 SCC 584 in which it was held that before imposing the extreme penalty of death sentence, the Court should satisfy itself that death sentence is imperative, as otherwise the convict would be a threat to the society, and that there is no possibility of reform or rehabilitation of the convict, after giving the convict an effective, meaningful, real opportunity of hearing on the question of sentence, by producing material. The hearing of sentence should be effective and even if the accused remains silent, the Court would be obliged and duty-bound to elicit relevant factors. {Para 9}

10. It is well-settled law that the possibility of reformation and rehabilitation of the convict is an important factor which has to be taken into account as a mitigating circumstance before sentencing him to death. There is a bounden duty cast on the Courts to elicit information of all the relevant factors and consider those regarding the possibility of reformation, even if the accused remains silent. A scrutiny of the judgments of the trial court, the High Court and this Court would indicate that the sentence of death is imposed by taking into account the brutality of the crime. There is no reference to the possibility of reformation of the Petitioners, nor has the State procured any evidence to prove that there is no such possibility with respect to the Petitioners.We have examined the socio-economic background of the Petitioners, the absence of any criminal antecedents, affidavits filed by their family and community members with whom they continue to share emotional ties and the certificate issued by the Jail Superintendent on their conduct during their long incarceration of 14 years. Considering all of the above, it cannot be said that there is no possibility of reformation of the Petitioners, foreclosing the alternative option of a lesser sentence and making the imposition of death sentence imperative. Therefore, we convert the sentence imposed on the Petitioners from death to life. However, keeping in mind the gruesome murder of the entire family of their sibling in a pre-planned manner without provocation due to a property dispute, we are of the opinion that the Petitioners deserve a sentence of a period of 30 years.

                          Supreme Court

JUSTICE L. NAGESWARA RAO JUSTICE B.R. GAVAI JUSTICE B. V. NAGARATHNA

Mofil Khan & Anr. Vs. The State of Jharkhand

Review Petition (Criminal) No.641 of 2015

26th November 2021

Author: L. NAGESWARA RAO, J.

Citation: 2021 ALL SCR (ONLINE) 701

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Whether appellate court must suspend the sentence of the convict as a matter of course?

In both the orders impugned, the High Court, apart from the aforesaid error about the length of imprisonment to be served by the Appellant, has also proceeded on entirely irrelevant consideration with reference to the principles related with the prayer for suspension of the operation of the order of conviction that such a suspension could be granted only in rare and exceptional cases and for special reason. With respect, the High Court appears to have missed out the fact that the prayer on behalf of the Appellant had only been for suspension of execution of sentence and not for stay or suspension of the operation of the order of conviction. Hence, reference to the decision in Navjot Singh Siddhu (supra) had been obviously inapt on the facts and in the circumstances of the present case. In fact, in the other cited decision in K.C. Sareen v. CBI, Chandigarh: MANU/SC/0409/2001 : (2001) 6 SCC 584, this Court has indicated that ordinarily, the superior Court should suspend the sentence of imprisonment in the matters relating to the offence under the PC Act, unless the appeal could be heard soon after filing. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 751-752 of 2019 

Decided On: 26.04.2019

N. Ramamurthy Vs.   State

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: MANU/SC/0615/2019

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Whether Criminal court can decide the issue of its territorial jurisdiction before the recording of evidence?

  But be that as it may, the upshot of the above discussion

is (i) that the issue of jurisdiction of a court to try an “offence”

or “offender” as well as the issue of territorial jurisdiction,

depend upon facts established through evidence (ii) that if the

issue is one of territorial jurisdiction, the same has to be

decided with respect to the various rules enunciated in sections

177 to 184 of the Code and (iii) that these questions may have

to be raised before the court trying the offence and such court

is bound to consider the same.{Para 39}

40. Having taken note of the legal position, let me now come

back to the cases on hand.

41. As seen from the pleadings, the type of jurisdictional

issue, raised in the cases on hand, is one of territorial

jurisdiction, atleast as of now. The answer to this depends upon

facts to be established by evidence. The facts to be established

by evidence, may relate either to the place of commission of the

offence or to other things dealt with by Sections 177 to 184 of

the Code. In such circumstances, this Court cannot order

transfer, on the ground of lack of territorial jurisdiction, even

before evidence is marshaled. Hence the transfer petitions are

liable to be dismissed. Accordingly, they are dismissed.

41. However, it is open to both parties to raise the issue of

territorial jurisdiction, lead evidence on questions of fact that

may fall within the purview of Sections 177 to 184 read with

Section 26 of the Code and invite a finding. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

TRANSFER PETITION (CRL.) NO.456 OF 2019

KAUSHIK CHATTERJEE  Vs STATE OF HARYANA 

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Karnataka HC: Award passed in Lok Adalat in cheque dishonour case can be enforced through Criminal court

 During criminal proceedings under Section 138 of N.I. Act, if the accused were to dishonestly state that he was agreeable for reference to Lok-Adalat, in furtherance of which the matter is referred to Lok-Adalat and a compromise being arrived at on certain terms in a dishonest manner in that the accused even at the time knowing fully well that he would not adhere to the terms of the compromise and thereafter the accused not performing his obligation would take up the contention that only methodology available to the complaint is execution of compromise as a civil decree, thereby the accused would have successfully avoided a criminal prosecution, frustrated the complaint and left the complainant with no possibility or lesser possibility of recovering the monies due to him as he would had under Section 138 of N.I. Act.

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Supreme Court upholds law which restores trial of labour law offences to criminal court

Actually what has been done is that the cases which ought to have been tried by the regular criminal Courts were sought to be transferred to the Labour Courts by the Amendment of 1981 and only that process was sought to be reversed by the impugned Amendment of 2002. Thus, in the wisdom of the Legislature, the process would be better served by maintaining the regular criminal Courts as a forum for adjudication of such disputes which have a criminal aspect, relating to the identical 16 labour law statutes. It is not the function of this Court to test the wisdom of the Legislature and substitute its mind with the same, as has been reiterated in the cases of State of Andhra Pradesh and Ors. v. McDowell & Co. and Ors. MANU/SC/0427/1996 : (1996) 3 SCC 709. & Mylapore Club v. State of Tamil Nadu MANU/SC/1854/2005 : (2005) 12 SCC 752. It is for the Legislature to weigh this aspect as to what would be the appropriate method for providing expeditious justice to the common man - an aspect which would be common both to the wisdom of the Legislature and of the judiciary.

8. The process as evolved shows that the system, as it is, is working in the criminal Courts for the last more than a decade and no grievance has been made about the same. The absence of any representation on behalf of the Respondent(s) further gives credence to this reasoning.

9. We are of the view that it is really not possible to sustain the impugned order which is accordingly set aside and the provisions of Madhya Pradesh Labour Laws (Amendment) & Misc. Provisions Act, 2002 are upheld.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4658/2009 and C.A. No. 7613/2009 (IV-A)

Decided On: 29.01.2020

 State of M.P.  Vs.   M.P. Transport Workers Fedn.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and K.M. Joseph, JJ.

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Whether delinquent can be held guilty in departmental inquiry if on the same facts he is acquitted by the criminal court?

It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honorably acquitted by the competent Court on the same set of facts, evidence and witness and, therefore, the dismissal order based on same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.

In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2582 of 2006 

Decided On: 10.05.2006

G.M. Tank Vs. State of Gujarat 

Hon'ble Judges/Coram:

AR. Lakshmanan and R.V. Raveendran, JJ.

Citation: MANU/SC/8156/2006 : (2006) 5 SCC

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Whether employer can remove employee from service even if he was released on probation of offenders Act?

 Yet another reason given by the High Court for interference with the order of discharge is that the criminal court released the Respondent on probation only to permit him to continue in service. 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.1 The observations made by a criminal court are not binding2 on the employer who has the liberty of dealing with his employees suitably.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7011 of 2009

Decided On: 26.04.2019

 The State Bank of India  Vs.  P. Soupramaniane

Hon'ble Judges/Coram:

L. Nageswara Rao and M.R. Shah, JJ.

Citation: AIR 2019 SC 2187

L. Nageswara Rao, J.

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Whether Criminal court can appoint Advocate commissioner for recording of evidence?

As per Section 285(1) Cr.P.C no Advocate could be appointed as Commissioner for recording the evidence of witness.

11. Section 286 Cr.P.C is as follows:

286. Execution of commissions.

Upon receipt of the commission, the Chief Metropolitan Magistrate of Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may appoint in this behalf, shall summon the witness before him or proceed to the place where the witness is, and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials of warrant cases under this Code.

As per Section 286 Cr.P.C., either the Metropolitan Magistrate or Judicial Magistrate may be appointed as Commissioner for taking down the evidence of the witness.

IN THE HIGH COURT OF MADRAS

Criminal Revision Petition No. 1330 of 2006

Decided On: 01.09.2009

 Pankajam Ramaswamy Vs. M.R. Elangovan

Hon'ble Judges/Coram:

T. Sudanthiram, J.

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Whether civil court can rely on finding given by criminal court?

The case law on the subject is umpteen. As noticed, the proceedings are often referred to as, in the nature of, a summary proceeding, a quasi-civil proceeding, analogous to a civil proceeding, etc. All that is determined in the said proceeding is as to the prima facie entitlement for possession. Adjudication of title does not form the subject matter of enquiry therein, though incidentally title may also often go into the zone of consideration. However, the jurisdiction to decide on title ultimately vests with the Civil Court. Suffice to say that adjudication on title if any in a proceeding under Section 452 of the Cr.P.C., is always subject to the decision on the same by the Civil Court. The finding on title in a proceeding under Section 452 of the Cr.P.C. could not be made the basis for determination of title in the civil Court. The civil Court has to independently adjudicate on title.

23. The Learned Senior Counsel appearing for the respondents-plaintiffs referred to the judgment of various High Courts and the Apex Court regarding the extent to which the judgment in a criminal case is relevant in a civil case. In Anil Behari v. Latika Dassi(AIR 1955 SC 566), though a person (named Charu) was convicted and sentenced for life in a Sessions trial, in a subsequent civil litigation the Apex Court held that the Civil Court has to independently decide on evidence if he was the murderer. The relevant portion of the judgment runs as under:

“The learned counsel for the contesting respondent suggested that it had not been found by the lower Appellate Court as a fact upon the evidence adduced in this case, that Girish was the nearest agnate of the testator or that Charu had murdered his adoptive father, though these matters had been assumed as facts. The Courts below have referred to good and reliable evidence in support of the finding that Girish was the nearest reversioner to the estate of the testator. If the will is a valid and genuine will, there is intestacy in respect of the interest created in favour of Charu, if he was the murderer of the testator. On this question the Courts below have assumed on the basis of the judgment of conviction and sentence passed by the High Court in the sessions trial that Charu was the murderer. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Charu was the murderer. That question has to be decided on evidence.”

24. As noticed, the judgment of the Criminal Court was held to be relevant only to show that there was such a trial which ended up in conviction and sentence. If in a subsequent civil proceedings the very issue arises, the civil court has to independently consider the evidence and reach at its own conclusion. To sum up, independent on the finding under Section 482 of the Cr.P.C, the Court has to enter a finding on title, on its own.

In the High Court of Kerala at Ernakulam

(Before V. Chitambaresh and Sathish Ninan, JJ.)

Kerala State Cashew Development Corporation Limited, 

v.

M/s. Binod Cashew Corporation,

Decided on July 12, 2017.
Citation: 2017 SCC OnLine Ker 8389

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What is difference between recall of order and review of order?

 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 Cr.P.C. would not operate. In such 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. (Vide: Chitawan & Ors. v. Mahboob Ilahi, 1970 Crl.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra & Anr., 1985 Crl.L.J. 2.

Supreme Court of India

State Of Punjab vs Davinder Pal Singh Bhullar & ... on 7 December, 2011

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What is scope of power of review of Criminal court?

After hearing the counsel for the parties, we are of the view
that the High Court has erred in taking the aforesaid view. Section
362 of the Code is the material provision, which reads as under:
“362. Court not to alter judgment:- 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.”
The aforesaid provision debars the Court from altering or
reviewing the judgment only in those cases when it has signed its
judgment or when it has passed final order disposing of a case. In
the instant case, as mentioned above, the Trial Court on the
earlier occasion had simply deferred taking cognizance under the
impression that the sanction under Section 19 of the PC Act is
required. There was no final order passed disposing of the case
inasmuch as had the sanction been brought, (cognizance would have
been taken in any case), the Trial Court is authorised to take
cognizance which is not disputed by the learned counsel for the
respondent as well. The question whether a sanction is required or
not would be a different matter. We may point out here that the
Trial Court was not oblivious of the aforesaid aspect while taking
cognizance of offences under the PC Act against the respondent and
others. It specifically recorded that it does not amount to
reviewing its own decision. Vide order dated 13.09.2012 passed by
the Trial Court earlier, it had merely asked the Investigation
Officer to file sanction orders against A4 to A8 and deferred the
order of cognizance against them. There was no decision much less
conclusive decision taken by the Court. The Trial Court rightly
pointed out that it was only in the nature of reminding the duty of
the Investigation Officer to meet certain requirements for taking
cognizance of offence under the PC Act. However, when the
Investigation Officer brought to its notice, on the subsequent
date, that no such sanction was required, the Trial Court finding
it to be correct position in law took cognizance. By this, the
Trial Court was not reviewing any order. According to us order
dated 13.09.2012 could not be construed as final order, more so,
when there was no final determination of the issue regarding
requirement of sanction for prosecution against the respondent
herein.
The aforesaid view of the High Court is, therefore, clearly
erroneous and the impugned order is hereby set aside.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).398/2016

STATE THROUGH CBI/ACB,HYDERABAD A.P 
 V
DHARMANA PRASED RAO.
Dated:APRIL 26, 2016.
Citation:(2016) 13 SCC 261

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Whether a person can be denied appointment as Judge even though he is acquitted by criminal court?

 Looking at all this, can it be said that the opinion/order of the Hon'ble Administrative Judges' Committee dated 25th June, 2012 was perverse and/or so unreasonable that it would shock the conscience of the Court? Our answer would be an emphatic NO. In fact, far from this, we are of the opinion that the decision of the Hon'ble Administrative Judges' Committee was fully justified. Looking to all these factors, the said Committee felt that the Petitioner would not be a suitable candidate to be appointed in judicial service. His character was certainly not one that could be characterized as unblemished. To an average citizen in a remote area, a Court of Law is a temple of justice and the persons dispensing it are looked upon with the highest regard and respect. Therefore, when being selected for judicial service, a candidate like the Petitioner, would have to live up to and meet even higher standards than any other candidate applying for a job with the Government or other civil services. We, therefore, are unable to agree with the submissions of Mr. Salunke that there is any infirmity in the order/opinion dated 25th June, 2012 that would require our interference under Article 226 of the Constitution of India.

In the High Court of Bombay

(Before S.C. Dharmadhikari and B.P. Colabawalla, JJ.)

Shri. Vithal Waman Shelke .

v.

The High Court of Bombay, through registrar General and Another 

Writ Petition No. 1277 of 2015

Decided on October 14, 20

Citation: 2016SCCONLINE Bom9129

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Whether vehicle seized in wild life protection Act can be confiscated without finding of criminal court?

The aforesaid determination brings me to the factual matrix
of the case in hand. The Authorized Forest Officer in exercise of
power under Section 39(1)(d) of the Act of 1972 has directed
confiscation of the vehicle in favour of the State Government but
the criminal case initiated for commission of offence against the
petitioners under Sections 9,44,51,25,26 (28) of the Act, 1972 is
pending consideration before the jurisdictional criminal court; and
at present there is no finding recorded by the criminal court that
the petitioners' vehicle has been used for committing offence. In
absence of such finding by the competent criminal court, the
provisions of Section 39(1)(d) of the Act, 1972 cannot be invoked
into. The order of the Specified Officer forfeiting the vehicle
without awaiting the decision of the competent criminal court
about use of offending vehicle in above-stated offence is without
jurisdiction and without authority of law in light of the decision
rendered by the Full Bench of the Madhya Pradesh High Court in
the matter of Madhukar Rao (supra).
HIGH COURT OF CHHATTISGARH, BILASPUR
 Writ Petition (Cr.) No. 57 of 201 4

 Mohammad Shoaib, S/o Rafiq Mohammaad, V  The State of Chhattisgarh, 

Hon'ble Shri Justice Sanjay K. Agrawal
DATED: 05 /0 4 /201 6

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Whether court can pass decree for specific performance of contract on the basis of evidence adduced before criminal court?

Whether, while adjudicating plea of grant of decree for specific performance, Court can consider a document produced and related evidence led before the Criminal Court to make base for determining existence of fact.

High Court vide its impugned finding in the instant matter set aside the order of trial court rejecting the plea of grant of specific performance. The relief was sought on the basis of agreement to sell written on a quarter size piece of paper, which also included a mention of earlier execution of another agreement, which however was not filed on record. High Court reversed the finding on the premise that document in question was filed before the Criminal Court and evidence was led and based thereupon decreed the suit for specific performance.

The Court while hearing appeal against the impugned High Court finding made an observation that a decree for specific performance can be granted even on the basis of oral contract. However, an oral agreement with a reference to a future formal contract will not prevent a binding bargain between the parties. In a case where plaintiff comes forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of an oral agreement or a written contract, heavy burden lies on the him to prove that there was consensus between the parties for the concluded agreement for sale of immoveable property.

Whether there was such a concluded contract or not would be a question of fact to be determined on the facts and circumstances of each individual case. In a suit for specific performance of a contract, the Court cannot ignore Section 20 of the Specific Reliefs Act giving judicial discretion to grant decree for Specific performance. However, the Court is not bound to grant specific performance merely because it is lawful to do so. It should meticulously consider facts and circumstances of the case to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. The relief of specific performance is discretionary but not arbitrary which must be exercised in accordance with sound and reasonably judicial principles.

Where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or the other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. Under Section 20 of the Specific Relief Act, a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the court has to exercise its discretion in favour of granting relief for specific performance.

In the instant case the issue related to as to whether the agreement (in question) of 1967 allegedly executed by the defendants, could be enforced. In the agreement there was reference of earlier agreement where some sum of money was paid to the defendant-appellant which was denied and disputed. As mentioned above, the previous agreement was neither filed nor exhibited to substantiate the case of the plaintiff. The High Court placed reliance on the said agreement written in a quarter sheet of paper merely because of the fact that said quarter sheet of paper was produced before the Magistrate in a criminal proceeding.

The view taken by High Court was held to be incorrect to the effect that there was no reason to disbelieve the execution of the document although it was executed on a quarter sheet of paper and not on a proper stamp and also written in small letter. The High Court also misdirected itself in law in holding that there was no need for the plaintiff to have sought for the opinion of an expert regarding the execution of the document.

Various documents including order-sheets in the earlier proceedings including execution case were filed to nullify the claim of the plaintiff regarding possession of the suit property but these documents were not been considered by the High Court.

The evidence and the finding recorded by the criminal courts in a criminal proceeding cannot be the conclusive proof of existence of any fact, particularly, the existence of agreement to grant a decree for specific performance without independent finding recorded by the Civil Court.

It was accordingly held that the present was not the fit case where the discretionary relief for specific performance could be granted in favour of the plaintiff-respondent. The High Court in the impugned judgment failed to consider the scope of Section 20 of the Specific Relief Act and the precedents

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8224 OF 2003

K. NANJAPPA (Dead) BY LRs.V R.A. HAMEED alias AMEERSAB (Dead)

BY LRs. AND ANOTHER 

Dated;September 02, 2015

M.Y. EQBAL, J.:

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Whether criminal court can review its own order?

 Having noticed the aforesaid, this Court in Adalat Prasad case (supra) held a contrary view in respect of recalling of erroneous order of issuance of process from the earlier view taken by this Court in K.M. Mathew v. State of Kerala, MANU/SC/0434/1992: (1992) 1 SCC 217 and opined that the scheme of the Code does not provide for review of order of issuance of process and prohibits interference by the accused at the interlocutory stage under Section 203. This Court, after overruling the view expressed by this Court in KM. Mathew case (supra) has stated as under:

It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Code of Criminal Procedure does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code,

13. The aforesaid law laid down in Adalat Prasad case (supra) has been followed and reiterated by this Court in its subsequent decisions in Bholu Ram case (supra), Subramanium Sethuraman v. State of Maharashtra, MANU/SC/0770/2004 : (2004) 13 SCC 324; N.K. Sharma v. Abhimanyu,MANU/SC/1075/2005: (2005) 13 SCC 213 and Everest Advertising (P) Ltd. v. State, Govt. of NCT of Delhi MANU/SC/1767/2007: (2007) 5 SCC 54. In our view, the issue that we have raised for our consideration and decision is no more a debatable issue in view of what has been stated by a three judge bench of this Court in the case of Adalat Prasad (supra) and therefore, we are of the considered opinion that the High Court is not justified in rejecting the petition filed by the Appellant under Section 482 of the Code.

IN THE SUPREME COURT OF INDIA

Crl.A. No. 250 of 2013 (Arising out of SLP (Crl.) No. 4984 of 2012)

Decided On: 06.02.2013

Appellants: IRIS Computers Ltd.
Vs.
Respondent: Askari Infotech Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:H.L. Dattu and Ranjan Gogoi, JJ.

2013(3)KCCR1777, 2014(1)RCR(Criminal)468, 2013(3)SCALE207

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Whether criminal court has power to release vehicle on supratnama seized under Delhi excise Act?

 We have referred to the scheme of the Act and from that it is evident that the vehicle seized has to be produced before the Deputy Commissioner, who in turn has been conferred with the power of its confiscation or release to its rightful owner. The requirement of production of seized property before the Deputy Commissioner under Section 59(1) of the Act is, notwithstanding anything contained in any other law, and, so also is the power of confiscation. Not only this, notwithstanding anything to the contrary contained in any other law for the time being in force, no court, in terms of Section 61 of the Act, has jurisdiction to make any order with regard to the property used in commission of any offence under the Act. In the present case, the Legislature has used a non-obstante clause not only in Section 59 but also in Section 61 of the Act. As is well settled, a non-obstante clause is a legislative device to give effect to the enacting part of the section in case of conflict over the provisions mentioned in the non-obstante clause. Hence, Section 451, 452 and 457 of the Code must yield to the provisions of the Act and there is no escape from the conclusion that the Magistrate or for that matter the High Court, while dealing with the case of seizure of vehicle under the Act, has any power to pass an order dealing with the interim custody of the vehicle on security or its release thereof.

24. From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case, it is the Authorized Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate. The High Court was in error in taking a view to the contrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis.

12. From a conspectus of what we have observed above, the impugned order of the High Court is found to be vulnerable and, therefore, the same cannot be allowed to stand.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.25 OF 2014

STATE (NCT OF DELHI) Vs  NARENDER

CHANDRAMAULI KR. PRASAD, J.1

Citation; 2014(1) Crimes 168 SC , I(2014)CCR222(SC), 2014(1)MLJ(Crl)213, 2014(1)SCALE116

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Basic concept of honourable acquittal in departmental enquiry

The meaning of the expression ‘honourable acquittal’ came up for consideration before this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions ‘honourable acquittal’, ‘acquitted of blame’, ‘fully exonerated’ are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression ‘honourably acquitted’. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.

22. In R.P. Kapoor v. Union of India, AIR 1964 SC 787, it was held even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam and another v. Raghava Rajgopalachari reported in 1972 SLR 45, this Court quoted with approval the views expressed by Lord Williams, J. in (1934) 61 ILR Cal. 168 which is as follows:

“The expression “honourably acquitted” is one which is unknown to court of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals. 

Supreme Court of India

Dy.Inspector Gen.Of Police & Anr. vs S.Samuthiram on 30 November, 2012

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Whether criminal court can review its own order?

BAR TO REVIEW/ALTER- JUDGMENT

26. There is no power of review with the Criminal Court after judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 Cr.P.C. 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 is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa & Ors., AIR 2001 SC 43; and Chhanni v. State of U.P., AIR 2006 SC 3051).

2

Moreover, the prohibition contained in Section 362 Cr.P.C. is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 Cr.P.C. has no authority or jurisdiction to alter/review the same. (See: Moti Lal v. State of M.P., AIR 1994 SC 1544; Hari Singh Mann (supra); and State of Kerala v. M.M. Manikantan Nair, AIR 2001 SC 2145).

27. 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 Cr.P.C. would not operate. In such 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. (Vide: Chitawan & Ors. v. Mahboob Ilahi, 1970 Crl.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra & Anr., 1985 Crl.L.J. 2

23; Habu v. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); Swarth Mahto & Anr. v. Dharmdeo Narain Singh, AIR 1972 SC 1300; Makkapati Nagaswara Sastri v. S.S. Satyanarayan, AIR 1981 SC 1156; Asit Kumar Kar v. State of West Bengal & Ors., (2009) 2 SCC 703; and Vishnu Agarwal v. State of U.P. & Anr., AIR 2011 SC 1232).

28. This Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in Criminal Law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code itself. (Vide: State Represented by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & Ors., AIR 2009 SC 46).

29. In Smt. Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736, this Court held that the prohibition in Section 362 Cr.P.C. against the Court altering or reviewing its judgment, is subject to what is otherwise provided by this Code or by any other law for the time being in force. Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to 2

alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 Cr.P.C. and, therefore, the attempt to invoke that power can be of no avail.

30. Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law.

Review Of Order Is Expressly barred under CRPC. Court not to exercise its inherent power to reconsider the matter and record a conflicting desicion unless there had been change in circumstances of case.

Supreme Court of India

State Of Punjab vs Davinder Pal Singh Bhullar & ... on 7 December, 2011

Bench: B.S. Chauhan, A.K. Patnaik

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