HAZI ABDUL REHMAN Vs. ASHOK KUMAR

JUDGEMENT

(1.) This is an application by accused Abdul Rehman and Mohd. Yakub, Under Section 482 of the Code of Criminal Procedure for opportunity of hearing on question of sentence and modification of sentence passed on them in Cr. A. No. 1090/1981 dated 22-11-1985.

(2.) Ashok Kumar, Secretary of Riddhi Siddhi Power Loom Weavers' Industrial Co-operative Society Ltd. Sari Bazar, Burhanpur (hereinafter called 'the Society') filed a complaint against Hazi Abdul Rehman and his son Mohd. Yakub Under Section 407 of the Indian Penal Code, on the allegation that they committed criminal breach of trust of 120 bags of yarn valued at Rs. 1,31,849.22 paise, entrusted to them as carrier by M/s. Mama Road Lines, for delivery to the Society. Accepting the plea of the accused that they handed over the consignment of yarn to M/s. Raj Agency, the agent of Society the trial Court acquitted both the accused persons. The society through its Secretary filed appeal Under Section 378(4) of the Code of Criminal Procedure against their acquittal after obtaining necessary permission. This appeal was allowed by me by my judgment delivered on 22-11-1985. Both the accused were convicted Under Section 407 of the Indian Penal Code and each of them was sentenced to suffer rigorous imprisonment for three years and fine of Rs. 5,000/-, in default rigorous imprisonment for nine months.

(3.) After delivery of the judgment, the accused persons made an application Under Section 482 of the Code of Criminal Procedure for setting aside the sentence passed on them; for affording of an opportunity of hearing and passing appropriate sentence thereafter according to law. They also submitted that before delivery of the judgment, they were not heard on the question of sentence Under Section 248(2) of the Code of Criminal Procedure. The provisions of Sub-section (2) are mandatory and the non-compliance with this provision constitutes an illegality which cannot be cured and vitiates the sentence passed on them. The error can even now be corrected by me after affording an opportunity of hearing, in exercise of powers Under Section 482 of the Code of Criminal Procedure. On behalf of the State, it was submitted that Section 362 of the Code of Criminal Procedure bars any alteration or review of the judgment. After delivery of the judgment, the Court is functus officio and cannot entertain any prayer so as to modify the sentence already passed on the accused. It was also submitted that the provisions of Section 248(2), Criminal Procedure Code, do not apply to the appeal Court.