SREEDHARAN Vs. BHARATHAN

JUDGEMENT

(1.) All these Criminal Miscellaneous Applications are before us pursuant to a reference order passed by a learned Single Judge of this Court Sri. V.K. Mohanan (J) on 18.01.11 in separate Criminal M.As. in Criminal R.P. Nos. 1629/10, 2542/10, 2664/10 and 2138/10 and by subsequent reference orders in other cases. The issue which requires to be resolved is whether the High Court will be justified in enlarging the time already fixed for payment of fine while disposing of Criminal R.Ps. in exercise of its revisional powers under S. 397, by resorting to its inherent powers under S. 482 of the 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 payment of the fine amount and had also ordered that on failure to pay the fine amount, the trial court had the power to initiate coercive steps for securing the presence of the accused for the purpose of undergoing the default sentence of imprisonment. In all these cases, applications seeking enlargement of time were filed obviously as payment of fine was not made on or before the stipulated date. V.K. Mohanan (J) has in the reference order noticed the conflict between judgments of two learned Single Judges of this Court in A.C. Anwar v. State of Kerala,2007 2 KLD 646and in Beena v. Balakrishnan Nair & Anr., 2010 2 KerLT 1017. It was noticed that while the judgment in A.C. Anwar's case 3takes the view that S. 362 of the Cr.P.C. does not operate as a bar to the exercise of inherent powers under S. 482, the latter decision in Beena's case rules clearly that inherent powers under S. 482 of the Cr.P.C. are controlled by express powers of the court including the powers under S. 362 and hence, while a revision has been disposed of finally on merits the High Court cannot have the power of reviewing the same except for the limited purposes stated in S. 362 of the Cr.P.C. even under S. 482 of the Cr.P.C. The Honourable V.K. Mohanan (J) in the reference order has stated that he shares the latter view but wants the issue to be resolved by a Bench of greater strength on considerations of propriety and the importance of the issue.

(2.) Very extensive submissions were addressed before us by the learned counsel for the applicants/revision petitioners Sri. Sunny Mathew, Sri. Alexander George, Sri. George Mathew, Sri. S. Krishna Kumar, Sri. K.C. Sudheer, Sri. A.P. Subhash, Sri. T.P. Pankajakshan, Sri. S. Santhosh Kumar, Sri. V.R.K. Kaimal, Sri. P. Bani, Sri. P.K. Mohanan, Sri. Sajan Varghese, Sri. Santhosh P. Poduval, Sri. K. Anand and Sri. P.V. Dileep. It was Sri. Sunny Mathew who piloted the arguments on behalf of the applicants/revision petitioners. He would draw our attention to various precedents and firstly to the two Single Bench judgments referred to in the reference order namely A.C. Anwar v. State of Kerala and Beena v. Balakrishnan Nair and another . He referred also to various judgments of the Supreme Court including the judgment in Moti Lal v. State of Madhya Pradesh, 1994 AIR(SC) 1544 , Mostt. Simrikhia v. Dolley Mukherjee, 1990 2 SCC 437 , Smt. Sooraj Devi v. Pyare Lal, 1981 1 SCC 500. Dr. Raghubir Saran v. State of Bihar & Anr., 1964 AIR(SC) 1 , Raj Kapoor and Others v. State (Delhi Administration) & Ors., 1980 AIR(SC) 258 , Puran v. Rambilas & Anr., 2001 6 SCC 338, Mary Angel & Ors. v. State of T.N., 1999 5 SCC 209, Dinesh Dutt Joshi v. State of Rajasthan, 2001 8 SCC 570, State v. Navjot Sandhu, 2003 6 SCC 641, Mahendra Singh and others v. State of Bihar, 2002 10 SCC 678, Sankatha Singh & Ors. v. State of Uttar Pradesh, 1962 AIR(SC) 1208, Municipal Corporation of Delhi v. Ram Krishan Rohtagi, 1983 AIR(SC) 67, Roshanali v. State of Gujarat, 1982 AIR(SC) 784 and Hari Singh Mann v. Harbhajan Singh Bajwa, 2001 AIR(SC) 43. The learned counsel also referred to the judgment of this Court in Dharmarajan v. State of Kerala, 1995 1 KerLT 732. The key point canvassed by Sri. Sunny Mathew and other learned counsel for the applicants/revision petitioners was that power should be conceded to the High Court for doing justice in most deserving situations as otherwise justice would become casualty. The learned counsel also argued that granting further time to obey an order will not amount to reviewing the order itself and hence, S. 362 cannot be a hurdle for granting time at least once in a case where the inability of the accused to comply with the order is on account of very genuine reasons. The submissions of the learned counsel for the applicants/revision petitioners were answered in an equally learned manner by the Additional Public Prosecutors particularly Sri. S.U. Nazar. The learned counsel for the complainants in some of the cases mainly Advocate Sri. R. Bindu Sasthamangalam would resist the submissions of the counsel for the applicants. According to them it is the correct view which has been expressed by the Honourable Thomas P. Joseph (J) in Beena's case and as that judgment is supported by judgments of the Supreme Court we ought to approve the same.

(3.) For answering the issue referred, it will be profitable to extract the two provisions of law which are relevant.