AMIR ALI Vs. STATE OF BIHAR

JUDGEMENT

(1.) The prayer in this application is that this Court in exercise of its inherent powers under section 482 of the Code of Criminal Procedure should modify its judgment and order dated 22-12-1982 passed in criminal revision 1365/80. This criminal revision No. 1365/80 had been filed against the judgment and order dated 16-9-1980 passed in criminal appeal No. 34/79 (27180) by the 1st Additional Sessions Judge whereby he upheld the judgment and order dated 27-1-1979 passed by Sri S.R. Hussain, Judicial Magistrate, 1st class, Hajipur in G.R. Case No. 165/69 in which the learned Magistrate had variously convicted the petitioners under sections 147, 148, 323 and 324 of the Indian Penal Code and sentenced them to undergo Rigorous Imprisonment for four months for offences under sections 147,148 and 323 of the Indian Penal Code and to Rigorous Imprisonment for six months under section 324 of the Indian Penal Code.

(2.) Criminal revision No. 1365180 was admitted on the question of sentence only. From the judgment passed in that case it appears that at the time of hearing a prayer was made on behalf of the petitioners that all the sentences under the different offences be reduced to the period the petitioners have already remained in custody. The prosecution of course opposed this prayer and the learned Honble Justice R.N. Prasad (my name sake) after considering all aspect of the matter did not accede to the prayer made on behalf of the petitioners. The judgment of criminal revision No. 1365/80 shows that the Honble Judge after taking into consideration the facts and circumstances of the case reduced the sentences under sections 147, 148 and 323 of the Indian Penal Code from Rigorous Imprisonment for four months to Rigorous Imprisonment for one month each and he also modified the sentence imposed for the offence under section 324 of the Indian Penal Code and reduced it from six months to two months and directed that all the sentences shall run concurrently. With the above modifications, the Honble Judge dismissed the criminal revision in question. About a month-later, i.e., on 24-1-1983 a petition was filed in criminal revision 1365/80 praying therein to modify the judgment and order dated 22-12-1980 on the ground that there has been no compliance of the mandatory provisions of section 360 of the Code of Criminal Procedure and as such the judgment and order passed in criminal revision needs modification. On 2-3-1983, when this petition was placed before the Honble Judge who had passed the judgment and order dated 22-12-1982, he recorded the following order on 2-3-1983. Heard the learned counsel for the petitioners. Learned counsel is allowed to make necessary correction in the top portion of the application and get the application converted into a separate Cr. Mise. Application. The application is accordingly converted into, a Cr. Mise. Application. Put up this application for admission on 7-3-1983. In view of this order, that petition was converted into a regular criminal miscellaneous came to be registered as an application under section 482 of the Code of Criminal Procedure and thus the present case criminal miscellaneous 2086/83 was registered. The learned counsel for the petitioners draw attention to the judgment of the trial court and urged that the court after finding the different accused persons guilty of the offences under sections 147, 148, 323 and 324 of the Indian Penal Code, all of which are punishable with imprisonment of less than seven years, did not at all consider the question of releasing them on probation and gave no reasons why they could not be released on probation and the various sentences had to be imposed upon them. The submission is that this omission is a clear violation of the mandatory provisions of sections 360 and 361 of the Code of Criminal Procedure (hereinafter referred to as the Code). The appellate court also did not take note of this. It is urged that unfortunately at the time of hearing of the criminal revision application on the question of sentence, the learned lawyer for the petitioners did not address the court on this point and the Honble Judge also missed this point thereby resulting injustice to the petitioners and also violation of the mandatory provisions of the law. In this context, the prayer is that this Court in exercise of its inherent power should correct this illegally and contravention of the mandatory provisions and the question whether the petitioners deserve to be released on probation under section 360 of the Code of Criminal Procedure under the Probation of Offenders Act should be duly considered and orders passed in accordance with law.

(3.) Mrs. S.L. Jha, appearing on behalf of the State on the other hand submitted that the petitioners in act were asking for a review on merits of the judgment passed in the criminal revision application and the court does not possess and such if jurisdiction to make such a review and the inherent powers of the court cannot be invoked to confer jurisdiction were none exists. In this connection she has also drawn attention to the provision of section 362 of the Code which specifically prohibits the alteration or review of the judgment except to correct a clerical or arithmetical error. Her submission is that criminal revision No. 1365/80 had been heard on the question of sentence only and after considering the facts and circumstances of the case the learned judge was pleased only to make certain modification in the sentence and dismissed the revision application. As such the reopening of hearing of the criminal revision application for consideration as to whether the sentences ultimately award against the petitioners should prevail or whether they should be released on probation amounts to a prayer for alteration and review of the judgment.