STATE OF KARNATAKA Vs. SHRIKANT SHIVAPPA CHEKKI

JUDGEMENT

(1.) I. A. I. has been preferred by the original accused who is the respondent in Crl. A. No. 516/94. At the hearing of this appeal, since the respondent-accused had not engaged any learned Advocate to defend him, this Court had appointed learned Advocate Mr. B. Anand to represent the respondent, but it is relevant that the appeal was admitted on 5-8-1994 and since it was an acquittal in a murder case of some seriousness, this Court had issued a non-bailable warrant. The warrant came to be executed and despite this, the respondent did not engage an Advocate. We do not know of the circumstances in which the respondent was placed and even assuming that he was not in a position to engage a lawyer, this Court on 1-12-1997 appointed a learned Advocate as Amicus Curiae to represent him. The appeal was ultimately heard in the month of January by this Division Bench and disposed of by judgment dated 7-1-1998. It is relevant to point out that this Court very carefully reviewed the entire evidence, heard both the counsel at considerable length as will be evident from the record of the appeal and thereafter recorded the verdict that the order of acquittal is liable to be set aside and that the respondent was required to be convicted of the offence under S. 302, I. P. C.

(2.) I. A. I. which is dated 11-1-1998 states that the respondent was released on bail by the Sessions Court after the admission of the appeal and in paragraph 3, there is the following unequivocal admission : "i was told that the State of Karnataka has preferred the appeal against the order of my acquittal in Sessions Case No. 67/91 and that I was released on bail pending disposal of the said appeal. " His grievance is that no formal notice was served on him by the office. According to the affidavit filed he states he was under the impression that separate notice would be served on him and that on receipt of such notice he would have done the needful to defend the appeal. We are unable to accept any such contentions because there is more than enough evidence on record to indicate that the respondent was aware of the filing of the appeal and its pendency and he was also aware of his duties if he desired to defend the appeal. Despite his not having engaged any counsel of his choice, this Court still appointed a learned Advocate as an Amicus Curiae to argue the case on his behalf. The grievance projected is therefore of no consequence whatsoever and in our considered view, it is a lame excuse and an afterthought and an attempt to once again apply for a virtual rehearing of the appeal. It is unfortunate that after the final disposal of cases, applications of this type are made and this is not the first occasion when this Court has been required to point out in no uncertain terms that the rule of finality applies in respect of the final disposal of a proceeding and that all sorts of attempts that are made to reopen the proceedings invariably through the change of advocate is something of which this Court will take a serious view.

(3.) THE learned SPP has filed his objections and it is inter alia pointed out that irrespective of what may be the ground, that S. 362, Cr. P. C. imposes a total and complete bar on a Criminal Court reopening the proceedings for whatsoever reason. He has pointed out to the Court and very rightly so, that unlike the provisions that are applicable under civil law, that as far as the criminal cases are concerned where the operative part of the judgment takes effect immediately, that the law precludes any reviews or reopening of criminal cases finally disposed of and that the only limited power that vests in the Court is to correct errors that may be apparent in the judgment, S. 362 has been interpreted by the Supreme Court and by the various High Courts and the learned SPP has only drawn our attention to one of the leading decisions on the point reported in 1981 SCC (Cri) 188 : (1981 Cri LJ 296) wherein it has been clearly laid down that the power to rectify a clerical or arithmetical error is a very limited one and that apart from this, a Court is precluded from altering a final judgment in criminal cases. Apart from this, the learned SPP has submitted that even on facts and even assuming that the Court is possessed of the review power that no case has been made out for reconsideration. Not only are we in agreement with this submission but we need to further record that we do recall that this appeal had been heard at considerable length and that this Court has very carefully and meticulously examined all aspects of the case - this is not a case where for the default or absence of anybody that the Court has passed summary orders.