James vs State of Kerala

S. Fadmanabhan, J.—Mother and son (accused 1 and 2) were tried for offences punishable under Sections 307, 332, 212 and 225 read with section 34 of the Indian Penal Code, but convicted only under Sections 212, 324 and; 332. Sentences were also imposed. Appeals by State and the accused were disposed of by a common judgment on 28-3-1988. Both appeals were partly allowed. Convictions and sentences were modified. First accused was ordered to be released on probation. Second accused was convicted under Sections 212, 225 and 332 and reduced sentence of simple imprisonment for one year (maximum sentence awarded by the trial court was three years) was awarded under each count with direction to suffer the sentences concurrently. In SLP No. 1739 of 1988, filed by the second accused the Honorable Supreme Court ordered

Special Leave Petition is dismissed. The petitioner may, if he is so advised approach the High Court for an application under the Probation of Offenders Act.

Accordingly, this petition was filed u/s 482 of the Code of Criminal Procedure praying that in the light of the opportunity given by Their Lordships of the Supreme Court, this Court may be pleased to invoke the provisions of the Probation of Offenders Act to release him on probation. Both sides and Advocate Shri T. R. Raman Pillar as amicus curiae were heard, Petitioner holds the view that even though the SLP was dismissed and it amounts to refusal to interfere with the conviction as well as sentence, the subsequent portion of the order will have to be interpreted as a direction to entertain and dispose of on the merits a petition to apply the provisions of the Probation of Offenders Act. If it is so interpreted this Court may not be justified in refusing to entertain and consider the prayer on the merits on the ground that there is the bar u/s 326 of the Code of Criminal Procedure saying that the sentence awarded remain in tact.

Unlike in England, the obiter dicta of the Privy Council (till the Supreme Court takes a different view) and of the Supreme Court, as distinguished from casual observations not binding on any court, are binding on all the courts in India. Casual observations on matters never required to be decided could not have been or treated as decided (Mohandas Issardas v. A. N. Sattanathan 1954 (56) BLR 1156 accepted in Ranchhoddas Atmaram Vs. The Union of India (UOI), A decision is only authority for what it actually decides What is of the essence of a decision is its ratio and not every observation found therein nor what logically follows from various observations made in it ( 1968 A S. C 647 and (1901) A. C 495, 506). An obiter dictum is an expression of opinion on a point which is not necessary for the decision of a case. The question, which is necessary for the determination of the case, would be the ratio decidendi.

That apart, the discretionary jurisdiction vested in the Supreme Court under Article 136 of the Constitution is very wide. It is not possible to define with precision the limitations on the exercise of that jurisdiction ( Dhakeswari Cotton Mills Ltd. Vs. Commissioner of Income Tax, West Bengal, ).Though the power has to be exercised only sparingly in exceptional cases of extra ordinary situations, there cannot be any technical hurdle of any kind. Finality of findings of facts or other grounds cannot stand in the way. The whole intent and purpose of Article 136 is that it is the duty of the Supreme Court to see that injustice is not perpetuated or perpetrated by decisions of courts and tribunals because certain laws have made the decisions of these courts or tribunals final and conclusive. The High Court cannot ignore what the Supreme Court said on the ground that the relevant provisions were not brought to the notice of the Court. So also, the High Court cannot sit in judgment over what the Supreme Court said ( Ballabhadas Mathurdas Lakhani and Others Vs. Municipal Committee, Malkapur, ; Narinder Singh Vs. Surjit Singh, and G.K. Dudani and Others Vs. S.D. Sharma and Others, I referred to these decisions and the principles as applicable only hypothetically provided what was argued on behalf of the petitioner is correct. If the Supreme Court directed fresh exercise of the sentencing discretion, this Court will be bound to do so and it cannot be said that Section 362 stands in the way since the sentence awarded by this Court was not interfered with.

But the Supreme Court has not given any direction at ail to this Court. Their Lordships only said that if the petitioner is "so advised", he can approach the High Court for the application of the Probation of Offenders'' Act. That only means that he could do so if permissible by law-He could be "so advised" to move this Court only if such a move is legally possible. Such an observation will enable this Court to consider the application of the provisions of the Probation of Offenders Act only if such consideration is otherwise legally permissible. That is so because he was not given an unconditional right to move this court and this court was not given a direction to consider the application ignoring the sentencing discretion already exercised. The observation that he could move this court "if so advised" could only be taken to mean that he could do so if it is allowed bylaw Neither the sentence was interfered with nor a fresh exercise of the sentencing discretion or application of the provisions of the Probation of Offenders Act directed to be considered overlooking the legal prohibitions. There is no indication that the Supreme Court meant any of these things.

Basing on the decision of the Supreme Court in Narpal Singh and others v State of Haryana (1977 CLJ 642), the learned counsel said that even in the absence of such a direction, this court could re-exercise the sentencing discretion. According to him, Section 235 (1) of the Code of Criminal Procedure indicates that in a case ending in conviction the judgment of conviction alone is the judgment and as Section 235 (2) shows the sentence is only something that is to follow after hearing the parties and it is not part of the judgment Therefore, in his opinion, in exercise of the inherent powers saved u/s 482. the High Court can, in appropriate cases, vacate the sentence and either modify it or apply the provisions of the Probation of Offenders Act and such an action cannot have, the fear of offending Section 362 because it will not amount to "alter or review" the judgment since sentence is not part of the judgment. In support of his argument that sentence is not part of the judgment he relied on the meaning given in Black''s Law Dictionary (fifth edition) But therein also, a judgment of conviction is described as:

A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence.

There is nothing in Narpal Singh''s case (1977 CLJ 642) indicating that sentence is not part of the judgment. In a case which ends in conviction there must first be a judgment of conviction and then a hearing on the question of sentence in which the parties may be entitled to adduce evidence also. Then a judgment of sentence should follow. When the appellate court maintains the conviction and remits the case solely for complying with Section 235 (2), the trial court has to do so. The question arose whether by change of the Judge a de novo trial is necessary if Section 326 is not applicable. The Supreme Court said that it is only the second part of the trial which is restricted to the sentence alone and the evidence already recorded by the predecessor before conviction may not be necessary and hence there is no question of are novo trial.

I do not find my way to agree with the argument that sentence is not part Of the judgment and it could be changed whenever the court feels so If such a position is accepted there could be do finality to sentences even after the decisions have become final and conclusive. In such a situation there could be as many petitions to reopen sentences as there are sentences in convictions in all the courts of the country taken together. Finality of decisions is something which is recognised and re-opening could fee only as authorised by law. Otherwise no sentence could be treated ''a final at any stage Courts are exercising the sentencing discretion after affording opportunities for hearing. Convictions and sentences are liable to appeal and revisions. Unlike in a civil case, review or alteration, is prohibited u/s 362 except to correct a clerical or arithmetical error Section 393 of the Code provides that judgments and orders in appeal are final subject to Sections 377,378 and 384(4) and the provisions for reference and revision contained in Chapter XXX. This is subject to the proviso to Section 39-3 that notwithstanding the final disposal of an appeal against conviction the appellate court may hear and dispose of an appeal against acquittal u/s 378 arising out of the same case or an appeal for enhancement of the sentence u/s 377 which is also arising out of the same case. Courts are bound to recognise that statutory finality which is necessary in the interest of society.

Sections 353, 354 and 362 of the Code of Criminal Procedure will have to be read together in solving the controversy. Section 353 deals with the mode of delivering judgments and Section 354 deals with the language and contents of a judgment. Section 362 prescribes the limitations in altering or reviewing the judgment or final order after it is signed The term "judgment" is nowhere defined in the Code. It is a word of general import and means only "judicial determination or decision of a court". It is an order in trial terminating in either the conviction or acquittal of the accused. It is the expression of the opinion of the court arrived at after due consideration of the evidence and all the arguments. Section 387 provides that rules relating to judgments of trial courts shall apply so far as may be practicable to judgments of any appellate court other than the High Court. The judgment of the High Court in its criminal jurisdiction is ordinarily final whether in appellate or revisional jurisdiction. A final judgment in a criminal proceeding must be one of conviction or acquittal. Till then the defence of autrefois acquit or convict is not applicable. An order of discharge is not a judgment.

A conviction consists of the verdict, the judgment and sentence A reading of Section 353 and 354 as a whole will indicate that what is meant by judgment includes the sentence also in cases of conviction. Sub sections (1) and (4) of Section 353 refer to the whole of the judgment Section 353 (6) while referring to the necessity or the presence of the accused when the judgment is pronounced deals with the nature of the sentence Section 354 (1) (c) specifies that in case of conviction the judgment referred to in Section 353 shall specify the offence, its section, the law and the punishment to which the accused is sentenced. Section 354 (3) indicates that if conviction is for an offence punishable with death or in the alternative imprisonment for life or imprisonment for a term, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, special reasons for such sentence. Section 354 (4) also directs judgment to contain reasons for the sentence in certain cases. u/s 354 (5), when a man is sentenced to death, the judgment shall contain a direction that he be hanged by the neck till he is dead. All these indicate that sentence is an integral part of the judgment in a case ending in conviction and it is binding on the parties and courts.

Anama Rout and Others Vs. Trilochan Das, said that the court should provide for in the operative portion of the judgment with regard to conviction or sentence against the accused persons under different heads and state the conviction and sentence in a specific and clear manner. Sentence is part of the judgment, and when an accused person is convicted, it is incumbent upon the court to pass a formal sentence, unless it sees fit to act u/s 360 of the Code of Criminal Procedure or under the Probation of Offenders Act. After signing and pronouncing the judgment in open court, a Magistrate on the same day enhanced imprisonment by one day at the request of the accused in order to make the order appealable. In Qurban Ali v. Azirudin (1883 AWN 16) it was held that although the Magistrate acted with the best of motives, yet, nevertheless, the alteration of the sentence was illegal. What is the offence for which the accused should be convicted and what should be sentence are matters for judicial determination, and omissions in these respects cannot be considered as clerical errors ( Bangaru Reddy and Another Vs. The State, ). Gulapa Singh v. Radha Das ( A I. R. 1964 Man 24) and W. G Singh v. Radha Devi and another (1964 (I) Crl. L J 676). Following the decision in State of Orissa Vs. Ram Chander Agarwala and Others, , it was held in Smt. Sooraj Devi Vs. Pyare Lal and Another, that the saving provision in Section 362 does not attract the power of the High Court u/s 482 Cr. P. C. Inherent power cannot be exercised for doing that which is specifically prohibited. High Court has no power to review its judgment or final order by invoking its inherent jurisdiction (1982 Crl. L. J. 1215). Altering conviction and sentence was held to be a grave error in Naresh and Others Vs. State of Uttar Pradesh, . The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the court. That is what constitutes the judgment. Review or alteration of it is only subject to Section 362.

Application of the provisions of the Probation of Offenders Act is a post conviction and pre-sentencing procedure. Release on due admonition u/s 3 is a substitute for the sentence. Release on probation u/s 4 or 6 is only postponement of the sentence after conviction and sometimes the sentence may not be awarded at all. When once the sentencing discretion is exercised and the sentence is awarded and the judgment signed and pronounced, it could be altered only by any one of the methods allowed by law. That is possible only when the sentence is interfered with by a competent court or a direction for that purpose comes from above When the sentence is in force an application to apply the provisions of the Probation of Offenders Act cannot be entertained and considered. Even taking for granted that the Supreme Court has directed consideration of the application on the merits, I do not find any reason to apply the benevolent provisions. The petitioner resisted the arrest of his brother and used force resulting in injuries to the police party. He used a chopper also. Details of the incident are discussed in the judgment. When the first accused was ordered to be released on probation, this court did not think it feasible to have such an approach to the petitioner. There is no reason now to come to a different conclusion. The duration of resistance and the difficulties to which the police party was put is clear from the judgment. I do not think that the request needs favourable consideration. Application of the provisions is not feasible in this case.

The petition is dismissed.